Help - can my mum keep her cleaner?

yellowelise

My parent has had a cleaner since I became unwell and unable to continue cleaning. They are elderly and has built a trust and rapport with them.

The cleaner has always been self employed, getting work from agencies, they have no contract with the agency in question only a one page document entitled ”personal assistant terms and conditions” which they signed in 2019. 

This includes a statement that they will not continue any existing work or try to approach clients to provide work to them and that this statement will stay in place for 365 days from last service. 

Since then they have had long periods of not receiving any work from this agency (up to 8 months) and been employed for this time with another firm. When they went back to get shifts again they did not sign any contract or new T&C’s.

The cleaner has now decided to work for themselves solely.

The agency is now bullying my parent who wants to keep this cleaner, they have threatened both them and the cleaner with court action and demanded monies from my parent to allow the cleaner to continue. 

What is our position?

We feel bullied into accepting a new cleaner from this agency but we have no contract with them and as far as I can tell the cleaner had no contact with the agency. 

KiKi

It's not clear: did your parent employ the cleaner through this agency? 

yellowelise

Yes, sorry
she found the cleaner through the agency and pays the agency.

comeandgo

If the agency is being paid for the cleaner then there is a contract. 

On-the-coast

There may be a contract with the agency though - and that contract may place restrictions upon your patents directly employing that cleaner outside of the agency for a period of time. 

The contract may also place similar terms on the cleaner.  

In practice these terms may be difficult to enforce. 

TBagpuss

Just to add - while it would be for the clearer to challenge, It may well be that a clause seeking to stop a cleaner from working for any former clients for a year might well be seen as a unfair contrct term and therfore unenforcceable - if she were a direcctemployee that would amost certianly be the cae (and restrictiove convenents in employment contracts have to be reasonable and proportionate , so not directly soliciting clients might be reasonsble, trying to prevent someone from working for anytone they had previously been doing cleaning ofr for 1 year probably wouldn't be, although a restriuction for a shorter period might be. if the cleaner was gebuinely self-employed then the legal position may be a but different.

Equally, it's possible that the contraact between your parent and the  agency may be unfair - what, specifically, does the contract they have with the agency say, and what is te basis on which they are demanding payment?  I think that probably,  if your parent has cancelled the contract wit hthe agency then any cliams the agency may have would just be against the clearner, subject to any reasonable cancellation / notice charges . 

yellowelise

I get that paying the agency implies a contract for a service but we have already received the service and got what we have paid for?

Nothing has ever been in writing. We have certainly never agreed any long term payment or service it is week by week in arrears. In fact my parent actually pays the cleaner in cash on behalf of the agent.

Surely we can’t be held to continue with this agency if we dont want to?

DullGreyGuy

The cleaner certainly has a written contract and it seems those terms make it clear that if they work for your parents they have to pay their agency their dues unless there is a 1 year break. Contracts dont have to be signed to be valid, they dont even have to be written but verbal contracts are hard to prove what exactly was agreed. 

Did you parents agree to anything, be sent any contract/terms? Do they pay the cleaner directly or via the agency? Its possible that they dont have a contract, depending on the answers to the above, in which case any threats to them are scaremongering but the ones to the cleaner aren't. 

Undervalued

yellowelise said:

My parent has had a cleaner since I became unwell and unable to continue cleaning. They are elderly and has built a trust and rapport with them.

The cleaner has always been self employed, getting work from agencies, they have no contract with the agency in question only a one page document entitled ”personal assistant terms and conditions” which they signed in 2019. 

This includes a statement that they will not continue any existing work or try to approach clients to provide work to them and that this statement will stay in place for 365 days from last service. 

Since then they have had long periods of not receiving any work from this agency (up to 8 months) and been employed for this time with another firm. When they went back to get shifts again they did not sign any contract or new T&C’s.

The cleaner has now decided to work for themselves solely.

The agency is now bullying my parent who wants to keep this cleaner, they have threatened both them and the cleaner with court action and demanded monies from my parent to allow the cleaner to continue. 

What is our position?

We feel bullied into accepting a new cleaner from this agency but we have no contract with them and as far as I can tell the cleaner had no contact with the agency. 

She does, as she works and gets paid!

A contract doesn't have to be in writing on a sheet of paper with the word "contract" at the top.!

Legally a verbal "contract" is just as binding, although obviously much harder to prove what was agreed. Even without a specific agreement, an employee owes their (former) employer a duty of good faith.

Clauses preventing a former employee from working for existing clients are not uncommon. However, excessively restrictive ones can be unlawful even if "agreed" in writing by both parties. It is also possible , sometimes, to successfully sue the new employer (which is arguably what your mother would be) for enticing the person to break their contract.

Realistically, the chances of the agency actually suing, let alone winning, are not high. However they can still cause a lot of trouble, stress and expense so tread carefully. 

yellowelise

The cleaner is self employed and their T&C’s state this clearly. I have asked them. 

The cleaner has not approached my parents, my parents wish to approach the cleaner to keep them.

My parents have no contract or agreed terms with the ‘agency’ which is actually a person who who finds cleaners for people. They do however pay the agency weekly in arrears.

comeandgo

yellowelise said:

The cleaner is self employed and their T&C’s state this clearly. I have asked them. 

The cleaner has not approached my parents, my parents wish to approach the cleaner to keep them.

My parents have no contract or agreed terms with the ‘agency’ which is actually a person who who finds cleaners for people. They do however pay the agency weekly in arrears.

If your parents are paying the agency there must be a contract, it may not be signed but for them to get invoiced or requested to pay a certain amount and your parents doing that, that is a contract.