Strange clause in nanny contract.

[Trunchbull]

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?

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.

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.

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.

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?

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.

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.

'This is getting a bit silly'

It was a silly idea.

"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.

We digress....