Nursery - 6 month non-solicitation of staff clause

[pecanpie]

We placed an ad on Gumtree for a nanny and a nursery carer at the nursery we have just left applied. She is our preferred applicant and we offered her the job at which point we realised that our old nursery contract had a clause in it which said we wouldn't solicit their staff for 6 months after terminating out contract.

Given that an ad was placed and the nursery carer applied, is this still considered solicitation? Will we be liable and does anyone have any idea what the financial penalty could be? Someone on the childcare board suggested it could be as much as £2k which would be financially crippling and we'd have to rescind the job offer. Aside from having to find another nanny, we know this girl is incredibly unhappy in her job for a number of reasons which is why she was already looking to leave.

All advice gratefully received.

Look up the definition of solicitation.

Have you asked the applicant what her contract with the nursery says about her leaving, can she work for anyone.

The Law may say that the condition is unreasonable and un enforcable.

You should probably take legal advice, but I really don't think that putting a public ad on Gumtree could count as "solicitation" unless the nursery could prove that you had only put the ad there as a smokescreen to cover up the fact that you had already reached an agreement with the carer. Which you hadn't, so they couldn't. You should be absolutely fine.

The ad has been up since 7 July and I've pored over dozens of CVs, requested about 10/11 for interview and 6/7 turned up. I wouldn't have gone to all the trouble if I was going to go after a member of nursery staff - infact, it hadn't even crossed my mind. Not sure I can prove it though and guess it's at the discretion of the nursery manager.

It is an unfair and unreasonable Contract term and Unenforceable.

Ignore that clause in the contract.

why is it unenforceable Lucinda?
We've asked the applicant to check too...

You can show when you put the ad in and that you've interviewed 6 or 7 other unsuitable people for the job before this woman even applied. I really really cannot imagine the nursery taking any action against you and I really really really can't see their having a cat's chance in hell of winning if they did. Just offer the woman the job (am assuming from OP that you want to, if you don't need to worry about legal issue).

Can you possibly quote the exact words of the clause?

You did not "solicit" her to apply for the job. So in that sense you did not do what they asked you not to do.

There is a term "unreasonable restraint on trade" I think the clause is similar to that.

Solicitation normally has another meaning and you can argue that the word chosen was the wrong word.

How would the nursery find out?

When someone leaves their job, they don't have to say which job they are going on to do.
The nursery could find out if you call/write to them for a reference.

Think what Lucinda may mean is that if a case went before a Judge, the contract terms may be considered uninforceable or unreasonable. Lucinda may be able to quote some case law - does anyone know if there are any cases of this type available?

Non-solicitation of staff
The parent/guardian of the child, the subject of this registration form, hereby agrees that during the term of this agreement and for the period of six months following its termination (howsoever terminated) that he/she will not seek to employ, entice away or attempt to entice away from the employment of the Company any person or persons employed by the Company at the date of termination of the agreement between the Company and the parent/guardian or any person or persons who was employed by the Company in the six months preceding the date of termination of the agreement between the parent/guardian and the Company. If the parent/guardian shall breach the aforementioned clause then he/she shall indemnify the Company fully in respect of all and any costs, claims, damages and expenses incurred by the Company as a result of the afotementioned breach to include the cost of replacing the said member of staff to include, but not limited to agency fees, advertising costs, management time in interviewing and all such other costs reasonably and necessarily incurred by the Company in replacing the member of staff together with all legal fees and disembursements.

Phew - that's all of it.

Oh and we really feel that we should approach the manager because we don't think we should hide anything. Aside from other staff members, people will find out because we have a friend or two still at nursery and a friend of DD from nursery will be in her pre-school class where nanny will pick up. Plus I'm just too honest for my own good.