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Strange clause in nanny contract.

(35 Posts)
Trunchbull Sat 09-Feb-13 12:59:46

I've come across this in a nanny contract:

"Should the nanny wish to terminate their contract within the first 6weeks/months they would be liable for £400 towards the costs incurred by the family in recruiting them. This amount will be deducted from their final wage and any shortfall must be paid before leaving on their final day."

Is this legal? Is it advisable? Would any nanny agree to this?

iluvkids Sat 09-Feb-13 13:16:42

as a nanny id never agree to that

nannynick Sat 09-Feb-13 13:19:51

I have not come across that.

Work seekers can not be charged by an agency at the time of seeking work. However I do not know of any legislation regarding recruitment costs once someone is in a job.

The job may not work out due to an issue to do with how the employer treats their employee, in which case it may not reasonable for the nanny to be responsible for recruitment costs. So some nannies may not sign it without there being an additional clause about the reason for leaving the job.

MrAnchovy Sat 09-Feb-13 13:19:54

Very unusual (in the last 30 years anyway), probably not enforceable as it is a penalty, definately not enforceable if it results in payment less than the National Minimum Wage, not sure what "must be paid before leaving on their final day" means unless it is a threat of false imprisonment (!). Definitely a sign of an employer with a 19th century attitude to employment that is to be avoided at all costs (except perhaps by a nanny that wants to take them to the cleaners with a claim for automatically unfair dismissal because however outrageous the nannys claim an employment contract like that is going to give the claimant's lawyer a field day in court).

Where have you come across it?

Trunchbull Sat 09-Feb-13 13:27:48

Thanks Mr A. It's been issued as a sample contract from an agency.

Trunchbull Sat 09-Feb-13 13:29:23

Thanks for the other replies too, I didn't mean to be rude there! I would not agree to it either.

nannynick Sat 09-Feb-13 13:33:57

Big chain agency or a small independent? Wondering how common such a clause may become, regardless of if it can be enforced or not.

Lostonthemoors Sat 09-Feb-13 13:36:03

I've never seen that and as a parent I wouldn't want it in any contract I gave to a nanny, as I think it would erode good will.

annh Sat 09-Feb-13 14:41:41

That sounds like a cheap trick on the part of the agency to ensure that parents do not try to have recourse to the agency to recover their fee if a nanny leaves in a short space of time. They probably also try to use it as a selling point with unsuspecting families who are concerned about paying a fee, probably first-time nanny families who dont realise that no experienced nanny is going to agree to such a clause.

OutragedFromLeeds Sat 09-Feb-13 15:13:28

I wouldn't sign a contract with that in.

Can I ask about a clause I came across? I can't remember exactly how it was worded, but it was along the lines of 'if the nanny is off work due to an injury that she later receives a settlement for, she is obliged to reimburse her employer for money paid to her during sick leave'. Is that legal?

OldLadyKnowsNothing Sat 09-Feb-13 15:44:19

Don't know about the legalities, but if part of the nanny's compensation includes lost wages, it would be reasonable to repay them if she had in fact been paid in full (not a lower "sick pay" rate than her usual pay.)

But if she had been paid, she couldn't claim for lost wages in the first place, so it looks as if they're after money from her "pain and suffering" compo, which seems morally wrong at the very least.

Hmm.

TheFallenNinja Sat 09-Feb-13 15:51:27

It doesn't really matter what's in the contract, if you agree by the terms then you are contractually bound by them. Fairness always depends on your point of view but that clause is clear and I would expect to feel pretty comfortable going to court having included it, had the terms agreed and signed and enforced it.

Read what you sign is the mantra.

Trunchbull Sat 09-Feb-13 16:08:29

Outraged, I've seen that one too, it came from a payroll company nanny contract.

OutragedFromLeeds Sat 09-Feb-13 16:09:49

'if you agree by the terms then you are contractually bound by them'

I don't think that's true. There are certain rights protected by law and you can't draw up a contract to subvert them, it wouldn't be legally binding regradless of whether you've signed it/agreed to it or not. For example, you can't pay someone less that NMW, producing a contract to say they've agreed to be paid £1 an hour, doesn't make it legal.

OldLadyKnowsNothing Sat 09-Feb-13 16:34:11

I agree with Outraged.

norkmonster Sat 09-Feb-13 16:44:28

The recoupment of sick pay is a fairly standard clause in most employment contracts now - it only applies if you subsequently recoup damages against a third party for injuries caused in an accident that have resulted in you being off work. It's a mechanism whereby the employee brings a subrogated claim effectively on their employer's behalf. Perfectly above board.

Blondeshavemorefun Sat 09-Feb-13 23:33:18

1st clause no way would I sign - sounds to me that if an employer had that then get have lost several nannies which therefor makes me think they are bad employers to work for

2nd clause - guess if they had to pay out for a temp nanny while you were off for a long time and you get a claim settled maybe have in it payment for temp staff in the insurance

A family I'm temping for is having 1/2 my salary paid by her medical insurance company as she is incapable of looking after her 2 young children after her operation

Trunchbull Sun 10-Feb-13 12:03:38

So basically, if a nanny starts a new position and the family treat her awfully, she has to buy her way out of the job.

MrAnchovy Sun 10-Feb-13 13:40:10

"It doesn't really matter what's in the contract, if you agree by the terms then you are contractually bound by them."

This is totally untrue. One of the many reasons that you may not be bound by terms you have agreed to is if the terms impose a penalty (i.e. a sum payable consequent on an action of one party that is not a genuine pre-estimate of the losses incurred by the other party).

FlorenceMattell Sun 10-Feb-13 22:00:50

on the subject of contracts.
If you drive an employer car as you liable to pay the excess yourself if an accident occurs?

Blondeshavemorefun Sun 10-Feb-13 22:03:12

Florence I have in my contract that the employers will pay the access regardless who is at fault

nannynick Sun 10-Feb-13 22:04:18

You could be liable for the excess on the insurance policy. May depend though what is written in the car use agreement, in the contract, or other supporting documents. It is something that should be thought about by all parties concerned.

FlorenceMattell Sun 10-Feb-13 22:05:01

Yes I thought that was normal with company cars too.

FlorenceMattell Mon 11-Feb-13 10:35:14

just read the contract again. It says "if you have an accident where it is not possible to claim against a third party, you may be required to pay the excess due for any claim and the Employer should be allowed to deduct from you pay"

No mention of supplying nanny with copy of insurance policy each year so she know what the excess it, could be £50 or £200

And so if while on school run, someone dents the car while I am in school, I have to pay.

To be honest have may own car, new model, but not big enough for three baby seats in back. But this will be deal breaker for me. Have choice of jobs, and this contract that contained countless other unworkable points has not impressed me.

Strix Mon 11-Feb-13 10:46:14

That's pretty odd, I have to say. If the fees are that hard to fork over, then perhaps cut the agency out of the hiring process. What I might do is actually say the first six months are a fixed term and neither party can terminate the contract in that time. But, I feel this would only be reasonable if it goes both ways.

FlorenceMattell Mon 11-Feb-13 11:01:36

How can you have neither party terminate a contract. Uk law states a months notice if a contract in place after first month of working.
Working as a nanny is very different to working in a big office. a nanny doesnt know what the job is like until she starts.
To be honest if you have found someone you trust to look after your children and she comes with qualifications and references you have checked. Then I do think a little trust would not go a miss.

Strix Mon 11-Feb-13 13:15:19

Ok, I'm not a lawyer but I'm pretty sure it is lawful to write a fixed term contract and say neither party can terminate in this period. I suppose you'd have a point if I was proposing a ten year fixed term contract.

But I don't thinking asking a nanny to stay for six months is unreasonable.

This of course assumes their is no gross negligence, the terms and condition of the job are as they were sold, etc.

OutragedFromLeeds Mon 11-Feb-13 13:23:20

I don't think you can prevent someone from leaving a job can you? Except the army maybe, what would you do if the nanny left? Put her in nanny jail?

Even if you can, would you want a desperately unhappy nanny who can't wait for 6 months to be up so that they can leave, looking after your children? Or an unreliable, incompetent nanny who you can't get rid of? I would think it would be better for the children for the nanny to leave after 2 weeks, as they'll be much less attached.

Strix Mon 11-Feb-13 14:29:01

Is there a special jail just for nannies?

I think there are quite a lot of jobs where you can't up and leave in the middle of a project. And a parent may very well be in a situation where he/she needs six months of continuity.

Put another way, 6 months notice period for the first six months, one month thereafter.

I would not want to force a very unhappy nanny to stay. But I woul have an open an honest professional discussion with a nanny candidate where I explained she will be contractually obligated to stay for 6 months minimum.

OutragedFromLeeds Mon 11-Feb-13 14:34:00

There is a special jail for people in the military who try to get out of their contract early, I wondered if you were planning on starting one for nannies.

I think a good nanny in a good job will stay for 6 months at least (barring any personal tragedy/major upheavel).

I wouldn't want to keep a bad nanny.

I wouldn't want to force a nanny to stay in a bad job.

I wouldn't want to force someone who has suffered a personal tragedy to stay when they wanted/needed to leave.

What would be the 'punishment' for breaking the contract and leaving before 6 months?

MrAnchovy Mon 11-Feb-13 14:44:08

If a nanny breached a fixed term contract by leaving before the fixed term was up, the employer would be entitled to compensation for losses consequent on the breach.

However:

1. Losses would be limited to the difference in cost for a replacement
2. Losses could not be deducted from pay but would have to be persued in an employment tribunal.
3. There is a duty on the employer to mitigate his losses, and the employer would need to persuade the employment tribunal of this.
4. There is also the possibility of a counter-claim for constructive dismissal.
5. If the employer wanted to get rid of the employee they are likely to have to pay them until the end of the fixed term.

The best way to keep an employee for at least six months is to treat them fairly, not to try to tie them in contractual bondage.

Strix Mon 11-Feb-13 15:54:28

This is getting a bit silly. I only put it forward as what I might do (hypothetiacally) if I really wanted to ensure someone stayed longer. It was in reponse the the contractual clause notes in the OP, whiuch even if laeful, in my view, is unreasonable.

I have it on good authority (form past and current nannies au pairs) that I am fab employer. So I don't really need advice on how to be nice to them. genrally speaking.

But I do think that nannies are employees, and if the seek to be seen as the professionals that they are, than their employment contracts should be governed by the same rules as any other. And I'm sure having a six month notice period is not unheard of.

I did write a 12 month fixed term contract with a previous au pair. After she arrived, got to us and we got know her a bit -- a couple of weeks -- I said I didn't really really fancy replacing her and she didn't really fancy being let go. So, together we dicided to lock the employment term down to 12 month contract in which neither of us had the right to terminate the arrangement. Now, of course, if she had had some personal tragedy or something I never would have held her to it.

But, let's face it, nannies sometime up and leave cause Johnny down the street offered the job she really wanted three months after starting yours. And that is what parents want to try and minimise. Of course, it happens anyway sometimes. And I for one could never be bothered to go through the process MrA describes. But, I might try and write a contract that would reduce the chances of finding myself in that position.

OutragedFromLeeds Mon 11-Feb-13 16:09:00

'This is getting a bit silly'

It was a silly idea.

MrAnchovy Mon 11-Feb-13 16:11:48

"But, I might try and write a contract that would reduce the chances of finding myself in that position."

I was more or less with you up until then, but I've got to pick up on that. Contracts in general, and particularly employment contracts, are there to deal with what happens when you get into a situation that you didn't expect to be in NOT to prevent you getting into that situation in the first place.

In a successful arrangement between two contracting parties, the contract sits in a drawer while each party gets on with doing what they have agreed to do. Once the contract comes out of the drawer you have failed. And if you believe that the terms of a written contract are more important than the willingness of two parties to engage on terms that are mutually beneficial then you will have failed before you start.

Strix Mon 11-Feb-13 18:55:55

We digress....

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