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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47382
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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. I have signed a basic terms and conditions contract

Resolved Question:

. I have signed a basic terms and conditions contract with my local nursery, and in it there is a clause saying that, as a registered parent, if I hire one of their staff as a Nanny, I am liable to pay 6 months salary compensation. It is not my intention to poach staff, but I am aware that one good member of staff is leaving so if I got my mother, who is not registered with the nursery, to hire/pay her (even though the nanny would be with us) could I be sued by the nursery?
Thanks
Matt
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

I presume you would not have been responsible nanny leaving her job now?

Customer:

no she is going to resign and do agency work but as she is my son's keyworker it's a great opportunity

Ben Jones :

ok thanks let me get my response ready please

Customer:

You seem to have disappeared!

Customer:

Sure

Ben Jones :

Such a clause could be seen as a restraint of trade and be illegal anyway, because it would prevent the free movement of workers and limit their employment opportunities. A restriction like this would mainly be aimed at preventing clients from poaching staff whilst they are still employed by the nursery. So if you had try to entice the nanny away from the nursery and she left because of you and to work , then that could trigger the clause and the nursery could perhaps try and sue you incurred as a result. However, they cannot just nominate a sum, like 6 months’ pay, without being able to show that they have suffered losses to that amount, otherwise it would amount to a penalty clause and again be unlawful and unenforceable. Had they been forced to look immediate replacement and incurred recruitment fees as a result they could pursue you but that is unlikely to amount to 6 months’ pay anyway.

So in the circumstances it is unlikely that the clause would be enforceable against you – it is not you who enticed the nanny away and made her leave her job and also the nursery is unlikely to be able to justify losses equal to 6 months’ pay.

Customer:

That was my feeling that it was a clause to scare parents away from poaching staff. I also imagine the cost of any civil procedure against us would be pretty high as well?

Ben Jones :

not necessarily, if the amount pursued is under £10,000 it will be in the small claims court which is not too expensive and they do not have to get legal assistance anyway - they could do it themselves and it would save them a big chunk, so in total it would likely be a few hundred pounds

Customer:

OK interesting, so perhaps the best course of action is to let the member of staff leave agency work, then approach her... and perhaps offer a sum as compensation to the owner to maintain good will, or is that admitting liability?

Ben Jones :

I would avoid offering any compensation at this stage, you are just asking then, I would only consider it if they go as far as making a claim and you wish to avoid that so you could try and negotiate something then. But you would be in a safer position if you let her leave, once she has departed and started work with an agency and it ios clear the reasons departure had nothing to do with you, then approach her

Customer:

OK thanks time, that's very clear

Ben Jones :

you are welcome, all the best

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