Lay Off Clause - Fair?

I remember it being on a couple of contracts I looked at when I was writing my first nanny contract and I removed it.

Very unfair.

Wow. That's unusual

And yes happy to do child related chores if have extra holiday but have always been given time off and normally go away myself

as an employer, I'd say this is really unfair, however for a nanny stuck on the wrong side of one of these clauses, I'll bet my bottom dollar they'd find alternative temp employment over the period from families who are desperate for help in the school holidays, so if an inexperienced nanny finds herself stuck, I would imagine it's relatively easy to become unstuck.

Equally, I do take exception to the posts that come up here every now and then where a nanny who is being paid full pay over a holiday period but is not taking it as their own holiday allowance takes exception to being asked to work during that period. If they're on full pay and not on holiday, getting name tapes on ready for September / heading to the uniform shop / clearing out the toy cupboard are absolutely fair game. A little light houseplant watering / hamster cleaning thrown in too. Reason on both sides.

..I am aware that there are some circumstances in which like that might possibly be enforceable, but none of them will apply to me.

Flagrant restraint of trade clause forbidding me to work in the same industry for six months after my notice period was served out, imposed on me when I moved from contract to permament. HR were absolutely adamant that is was non-negotiable and in the end I just signed it, safe in the knowledge that it was utterly unenforceable due to the fine work that William Wilberforce did two hundred years ago in abolishing slavery in the British Empire.

thisisme what is the clause you agreed to but didn't want to and why agree to it if so insane?

This clause was in the nanny contract I was provided with from the payroll company and in the one from the nanny agency - I removed it before giving the contract to my nanny as I would never have asked her to accept this ( actually I removed/altered so many clauses I might as well have just drafted from scratch in retrospect )

I am a nanny employer and wouldn't dream of including this kind of clause in my nanny's contract. I wrote my nanny's employment contract myself (I am a lawyer). I would have been embarrassed to have even suggested it - completely unfair on a nanny to not be paid because we didn't need her.

I assume, sadly, Luna that the point is that most inexperienced nannies without the cash to pay for legal advice or a union rep will just roll over and assume that they have to do whatever their contract says.

I've got a madly unreasonable clause imposed in my employment contract. In the end I signed expressing that it was under protest and I had no intention whatsoever of abiding by such a grossly unreasonable clause if push ever came to shove.

But I'm a middle aged professional with legal experience and two barristers in the family.

NannyNick fair point, I know of lots and lots of nannies who did not sign contracts until in the job, and then feel like they can't disagree with points as they don't want to rock the boat.

Also, despite being provided by a nanny payroll company, there are various issues with some of these default contracts provided by them. One of those issues is that (and I think I know which particular contract you're talking about NannyNick) is that it is so heavily weighted in favour of the employer that it could be deemed manifestly unfair, and so the nanny could not be held to it - in which case, what on earth is the point?!

I wouldn't sign a contract with that clause, it's really bloody unfair.

I did have a clause saying that the family didn't have to pay me the full amount in an old job but as it was one of my first live-out positions I didn't query it, it was 80% of normal wage IIRC but they only did it once.

I have (well am looking for a new nanny) a nanny but i would never include a clause like that, unless i knew i was going away for something like 3 months in the summer, so a long enough period to get temporary work.

When our nanny started she was very young so i insisted she got her dad to sign it as well as her (he knows his stuff, we know him) and didn't want there to be anything unfair in it (standard template from web).

I don't think there are any circumstances in which that sort of short notice short period layoff would be a reasonable mutually satisfactory arrangement, no.

I wouldn't agree to it. I can come in on a Monday morning to be told they're going away for 4/5 days from Thursday. not enough time to look elsewhere for work to cover the lost wages. Their choice to go away.

If I were in a situation as an employer where I knew I was going to be out of the country for many weeks each year - e.g. a full 6 weeks each summer - then I'd investigate whether a clause like this might be acceptable to prospective employees. Maybe they've got family in Australia that they'd like to take an extended break with. Maybe they'd be happy to take an alternative summer childcare job with their retention contract payments on top. But I'd be up front about it and endeavour not to be exploitative. If it works for both parties then that's good, but if it doesn't then I'd need to suck it up and go for another option.

Worrid - I don't think so because there is specific provision in employment law for correctly formulated lay off clauses. However, I've not had direct involvement in them so I'd not be sure exactly what you need to do to have a compliant one. And whether it could be challenged in a nanny setting.

I'm a cm and charge full fees when families are on holiday (I know childminding is different to nannying but it's a similar situation I think). Some families query it, but they can take it or leave it. I won't budge on it. Why should I not get paid just because you are choosing to take a holiday.

i used to be a nanny and wouldn't have signed a contract with that clause in. My bills need paying 52 weeks a year.

I have been presented with this clause in the contract by current family and asked for it to be removed. They agreed. Then when hours changed and contract rewritten they tried to include it again. I refused to sign unless contract amended and they agreed.
I think it came in the draft contract from payroll company. I don't think they are planning to be away for more than a couple of weeks.
To be honest I would give notice if I was employed but not being paid.

Wouldnt that clause be deemed as a unfair/unenforcabe (i cant remeber the proper term for it) and thus would be unenforcable eg a contract cannot have unlawful / explotive terms eg paying less then minium wage contractally or less then legal requirment for holidays along those lines

Or I am remebering my employment law wrongly from university (its been years since I have done employment law

I agree with the pp who said that nannies should know what they're signing before they sign it. What happens so often is that nannies sign whatever is put in front of them and then run to the help boards asking how to resolve it when something crops up. There is usually very little to resolve - you should have read the contract! If you didn't understand something, ask someone to explain it to you or go to the forums before you sign.

I think a lay-off clause is pretty awful when included in a nanny contract, especially when the contract in question stipulates an annual wage to be paid in instalments - which would lead most people to think they were safe from this kind of thing.

I don't currently have a nanny. But when I did, no absolutely not. I don't know what the standard template would have looked like as I drafted the contract myself (I'm trained to do it btw. Wasn't a bodge job!).

My personal view is that such clauses are not appropriate at all in nanny contracts. If you have a factory and have no orders coming in, having a lay off clause may be the deciding factor between being able to 'pause' things and hang on til some come through or closing. When you employ a nanny you should have budgeted for his/her salary and the whims of your holidays shouldn't affect that. I think the only moral use of lay off clauses is if it protects employment that may otherwise have to be terminated.