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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 55169
Experience:  Qualified Solicitor
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I have a dispute re a contractual term. We had a nanny and

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HiI have a dispute re a contractual term. We had a nanny and we paid the agency up-front for 12 months, but the nanny left within 3 months. The agency gave us a replacement guarantee - below.We had read this as applying here because we were hiring permanent staff and the fourth sentence applies - it is a different term / promise to my mind than the first sentence (which applies for first 8 weeks but also to any staff). Otherwise, we would never have agreed to pay a year up-front!"In the event of any Applicant, and/or the Client lawfully terminating the engagement and the Applicant leaving the employment within eight weeks of the date upon which the Applicant commenced work for the Client (the Replacement Guarantee Period), then the Client will receive a free replacement guarantee as described below (Replacement Guarantee). The Replacement Guarantee Period shall not be treated as a trial period. The Applicant shall be deemed to be engaged as a worker for the Client unless and until termination of the employment is carried out in accordance with these Terms and Conditions. In the event of the Client making alternative arrangements [AGENT] will provide a free replacement guarantee for up to twelve months for permanent staff positions only. For the avoidance of doubt no Replacement Guarantee is offered for temporary staff placements."

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

What do you specifically wish to know about this, please?

Customer: replied 10 months ago.
I want to know if I am entitled to a replacement guarantee - under the fourth sentence.
Customer: replied 10 months ago.
I think that I am - it is clearly not condition on anything else and addresses a different circumstance (i.e. only permanent hires etc). Its all pretty badly written, but it is a promise and it costs us a lot of money if they get a windfall gain here.

Thank you. Are you the Client or Applicant under the contract?

Customer: replied 10 months ago.
Hi. I am the Client. The contract is between me and the Agency. Our nanny left, she was permanent staff, and I have asked them to honour the term that says they give me a replacement guarantee for 12 months. They are saying no - they she left after 8 weeks. But I don't read it like this - the term / sentence that gives me my right is not linked to time at all, it is not conditional on this, and it is clear to me that it is a different term that applies where you are hiring permanent staff. Otherwise, there would be no need for that sentence.

Thank you. The sentence you are relying on is this I presume:

“In the event of the Client making alternative arrangements [AGENT] will provide a free replacement guarantee for up to twelve months for permanent staff positions only”

Now the replacement guarantee period is specifically defined before that – they actually state that this period is the 8 weeks after starting of work for you. This is defined in the clause and it also links to the replacement guarantee itself.

What the fourth sentence does is also adds another condition that this guarantee will only apply to permanent staff. So you would need to read it that it applies during the replacement guarantee period and also it is only for permanent staff.

I agree, it is not that clear, but this is what a court will likely interpret it as. The issue here is that you have your own interpretation and they have theirs – you could argue it out between yourselves but never reach an agreement. In that case the only way is to go to court and get them to resolve it. No one can guarantee the outcome but the likely starting point would be what I said above.

I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you

Hello, I see you have read my response to your query. Could you please let me know if it has answered your original question? You can either reply on here with a quick ‘Yes, thanks’, or select 3, 4 or 5 stars on this page. I can still answer follow up questions if needed to clarify anything for you. Many thanks

Customer: replied 10 months ago.
Many thank, very helpful
Customer: replied 10 months ago.
5 star

you are welcome and all the best

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