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Paid childcare

Discuss everything related to paid childcare here, including childminders, nannies, nurseries and au pairs.

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Original poster

New nanny has accepted another post before starting with us, agency refusing to refund fees

17 replies

namelessposter · 05/08/2013 14:40

We have been looking for a new nanny, and found a great candidate through an agency. For an assortment of reasons, it was mutually more convenient for the nanny to start at the end of the school holidays, so we wrote up her contract straight away but with a Sept start date, both signed it, and paid the agency invoice.

Since then her position has changed, and she has let us know she can no longer take up the job with us. The agency is happy to try and find us a new candidate but has given a blanket 'no refunds'. The T&Cs don't mention this, but do say,

"5. Payment - Invoices will be generated once an offer of employment has been made and accepted by the candidate, and are payable before the start date of employment and within 14 days of receipt not on the start date of the placement.

I have another candidate in mind through a difference source so would prefer to just have my money back. Given that she never even made it through the front door, can anyone advise if I have a case to insist on my money back or take it to court? It's a couple of grand so more money than I want to just walk away from really..

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Cindy34 · 05/08/2013 15:59

Do the terms say anything about refunds. Some agencies have a sliding percentage if they don't find you a replacement within a certain time frame.

northernlurker · 05/08/2013 22:03

Will they find you somebody else without charging you? If so I think that's ok. It's annoying but that's how agencies are. If they can't find somebody for you I think you should be able to get your money back. They haven't actually found you a nanny yet have they? For all you know the previous candidate could be the agency owner's sister just stringing you along!

Mendi · 05/08/2013 22:51

Usually agency Ts and Cs provide for them to find you a replacement. Not a refund. If that is the case then they are entitled to offer that and you have no entitlement to a refund.

If the Ts and Cs say nothing about nanny not starting (or leaving soon after starting) - which is unlikely IME - then you could argue there has been a total failure of consideration on the agency's part (their consideration being providing a nanny; yours being to pay for the service) and claim for the return of your fee. However, you're on the back foot having already paid and probably would be a small claims case.

I say check the Ts and Cs and hold them to providing an alternative.

LadyHarrietdeSpook · 06/08/2013 00:01

Challenge it. Just go for it and see what shakes out. You might not win but for a couple of grand it's worth it. She didn't even turn up! FFS. I would absolutely have a go getting the fees back.

LynetteScavo · 06/08/2013 00:14

You can a) find someone not through the agency, and take legal action, or

b) use them to find you another nanny.

It will probably cost you about £2K to take to court, but I think a couple of solicitors letters should do it.

Mendi · 06/08/2013 08:53

Unless you self-rep, it will cost more than £2k to go to court. If you self-rep it will be free apart from the court fees.

If it is a small claim then you can't get your legal costs back even if you win, so you would normally self-rep anyway.

Blondeshavemorefun · 06/08/2013 09:49

Seems a tad unfair to you tho the agency did find you a nanny - they did THe groundwork etc - not their fault nanny hasn't started the job

Maybe a 75% refund would be fair

If that happened with one of my agencies I think they would return fee and blacklist that nanny

Talk to agency and check t&c

Original poster

namelessposter · 06/08/2013 10:56

Not my fault either though - the new nanny accepted the job, then withdrew her acceptance.

The agency is happy to put forward more candidates but as it turns out my current nanny (who had resigned) is now in a position to stay on. I'd originally told her no, she couldn't withdraw her resignation as I'd made a commitment to the new nanny. But seeing as 'new nanny' no longer wants the job, and 'current nanny' does, then I'm very pleased to keep her.

It is tough on the agency, I agree, and if they offered 75% I'd prob accept and part on good terms. But 100% fee for a nanny candidate that never materialized seems harsh ..

OP posts:

EasterHoliday · 06/08/2013 11:56

I would run an argument along the lines suggested above - the withdrawal of new nanny's acceptance means a failure of consideration in that there is no acceptance by candidate and therefore no fee due at all and immediate repayment required.

Try googling requirements and regulation of employment agencies generally to see if it helps? I do get the sense that many of these agencies are run (badly) by former nannies who aren't on top of the administrative and legal side of things (voice of bitter experience etc), & this sounds like a remarkable try on.

NomDeClavier · 06/08/2013 12:05

Are they a member of the ANA or REC? They have complaints procedures for this sort of situation, although I'm not convinced ANA are much good.

I would take them to court tbh. That's disgusting and quite frankly unacceptable behaviour. They should have insurance to cover this and if they don't more fool them. It doesn't reflect well on the agency that they don't have reliable nannies and don't accept some sort of responsibility for not ensuring you got what you were paying for.

Original poster

namelessposter · 06/08/2013 14:55

Well whaddya know. Used the phrase "failure of consideration" and they are now happy to refund. Thankyou EasterHoliday.

OP posts:

Blondeshavemorefun · 06/08/2013 15:00

Fab :)

EasterHoliday · 06/08/2013 15:03

oh god but I love a happy ending against a nanny agency. Is there a resident MN nanny agent who comes on and can give the other side of the coin?

holidaysarenice · 06/08/2013 17:23

Did the nanny take another post with them? Iff so they have been paid twice for one nanny.

2plus1 · 06/08/2013 19:20

We had an apalling experience with a nanny agency and the nanny they supplied. We wanted to dismiss the nanny after a few weeks at the end of probation but the employee had employment law rights against being dismissed when we tried. Anyway the nanny agency failed in several ways ie not getting references or providing contact details, did not provide appropriately qualified candidate or standard of candidate that they assured us in writing about. After some fob off letters we took the agency to small claims and had a settlement paid to us for poor service provision. The agency also advertised REC membership but this had lapsed some time previously. We assumed REC advertising would have assured a quality service but alas not. Trading standards were rather interested...

HoikyPoiky · 07/08/2013 00:46

Nice work EasterHoliday and a nice result.

I love a happy out come

hinnigan01 · 07/08/2013 08:18

What a terrible aftercare service you received. It's Agencies like that , that give us good Agencies the bad rep we very often receive.

As an agent , I would be so disappointed in one of nannies if they let their impending family down like this, I would without hesitation remove her from our books. Apologising profusely to the family and would offer in a case of a nanny not turning up to start a new position , our help In finding a new nanny or a full refund .
I'm glad you finally resolved the situation and the agency acted as it should have in the beginning.

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