Flowerybeanbag or other employment law superstars...

[pecanpie]

A friend recommended I should ask you what you think of the non solicitation clause in our now terminated nursery contract. We didn't solicit nanny, she applied for a job that we had advertised. Does this count as solicitation? I posted originally on the Childcare board and you can find the exact wording from the contract there.

www.mumsnet.com/Talk/legal_matters/1028169-Nursery-6-month-non-solicitation-of-staff-clause

V. stressed about this as terrified of having a huge bill on our hands for legal fees/penalty charge...

Thanks!

Am not an employment lawyer (just a common or garden other lawyer ) but I am fairly sure this doesn't count as solicitation - unless you addressed the ad to her personally!

should add however that it would help if you could type out the actual non solicitation clause as the answer may depend on exactly how it's phrased.

ok, I've just read the other thread and the clause. Although I know this is not what you want to hear, the clause is potentially enforceable.

there are some slight issues (i.e did you know the person when she worked at the nursery - if you didn't you'd be ok, if you did you possibly won't be)

Also when you posted the add on gumtree was it be a limited area (ie the area in which the nursery was based) If it can be said that the local gumtree ads are a good place to advertise job vacancies in the local area then posting the add could be solicitation, although that's a greyer area

so what do you do? the safest option is to talk to the nursery (or to make the offer of employment conditional on the nursery worker getting sonsent from her former employer) most nuresies would probably agree to waive the clause if you explain what happened and set out why you don't think this is solicitation (which I know goes against the opinion I just gave) but you can say that you didn't place the add there to solicit but that its a public forum and the employee just chose to apply. You should also explain that you believe its a restraint of trade as it prevents you from employing the suitable candidate from the xx that applied and prevents her from getting emploment.

A reasonable nursery may consent, BUT that clause was drafted by a lawyer and therefore they obviously had some concerns about poaching of staff. Has that been a problem in the past? If it has it will make their attitude tougher than if it hasn't.

So what will it cost, he indemnity means they probably can't stop the nanny working for you they are not looking for an injunction on the face of it just compensation. (as they are implying that they'd take damages) That would cover the costs they can directly attribute to the nanny working for you.

As I understand it she had already resigned. Is that right? If so and she worked her notice then there are no losses for the nursery. If on the other hand she resigned to work for you then she/you may be liable for any recruitment costs they have advertising agenices , also is she didn't work her notice there may be costs asscoiated with covering that period.

I would add that it is very rare for companies to enforce these clauses as the law is very complex in this area, and its very expensive so usually a deal is done.

The bit of the clause that bothers me is that you can't 'seek to employ'. Solicitation is usually all about enticing someone away deliberately, and all that is mentioned too, but it's the 'shall not seek to employ' that would concern me, as you are seeking to employ her.

I reckon you've got two options. First option is to speak to the nursery, explain the situation, say that you had an ad out for a while, then this nanny applied directly to you through the ad. She was the best candidate, you offered her the job and at that point realised there was a clause in the contract you have with the nursery about non-solicitation. Then say that as you placed an ad, interviewed several candidates and the nanny applied in response to it without your prior knowledge, you are certain they would agree there was no solicitation involved, however you thought it best to just mention it so they are aware.

Or

You could just proceed with the employment and don't tell the nursery. If they then find out, you could just say 'oh goodness well it didn't occur to me at all that it would matter because we didn't entice nanny in any way, she just applied to our ad'.

Either way, I would personally approach it with a matter of fact 'of course it's not a problem' manner. Then if they say 'actually yes it is a problem, and try to claim against you, you can then go in with more detail about to what extent the clause may be considered unreasonable or unenforceable.

Thanks both. DH and I need to agree on which option to proceed with.

Is approaching the nursery realistic if the nanny hasn't yet resigned? She will be peed off if you decide to withdraw the offer and her card is marked at the nursery because they know she's looking elsewhere. To a certain extent that's her problem, but the nanny world is a small one...

I wonder whether the indemnity bit of that clause is enforceable actually. The usual measure of damages is losses arising from the breach, not from the sheer fact of the person leaving. Most of those costs are incurred whatever the reason she leaves, which makes me wonder if the indemnity is actually a disguised penalty clause. Penalty clauses are unenforceable as a matter of law. Despite working in the area, I genuinely don't know the answer to that bit.

I'd go with Flowery's option 2 personally...

I would just add that I prefer option 1, and that advertising can be solicitation, and there is case law on this which means that you could still fall foul of this is the nursery chose to pursue you. The wind is blowing in the direction of enforcing these clauses so I would really recomned you front it with the nursery (or the nanny does).

If you do go with option 2 I agree that you should go with the matter of fact apprach BUT you and/or the nanny could always try to qucikly cut a deal should the nursery get lawyers involved (and if they do I would say very strongly that you need to cut a deal as quickly as possible as this area gets messy very quickly)

They do and they don't. It costs a fortune to try and enforce a restriction, injunction is a discretionary remedy and you'd have a messy debate about validity of the indemnity and whether it was a penalty clause for losses not flowing from the breach. These things do get messy in correspondence, but only a fraction ever go anywhere.

thank you ribena and hilda. I think we will pursue option 1 and hope the manager at the nursery is flexible. Ultimately, prospective nanny will leave anyway - there are some changes being made at nursery which would force her to extend her hours beyond her current contract, plus a couple of other issues around regularity/timing of breaks which give her good grounds to want to leave - potentially factors which might act in our favour when approaching the manager (obviously for nanny to raise not us).

What will you do if the nursery say no? The problem with being upfront is that, even if they know their clause is dodgy and that they don't have the time or money to do anything, it's easy to say no.

Not disagreeing with your decision, but just a point to think about before you go in.

HTo be honest hoping the issue will be dealt with on a local level not with head office so won't cause major issues given nanny has a strong desire to leave regardless of us, which would leave her in the same position.

We'd aim to come to a financial agreement. They will find out who has employed her anyway because we live quite close to nursery and sometimes see staff members on nearby high street, plus one of DD's friends will still be there and children talk.

I mean would leave nursery in the same position

DH spoke to nursery this am. Manager is not there so deputy said she would refer it to her more senior cover who is in on Tues BUT she called back a few mins later to say it isn't a problem if nanny hands in her notice and works notice period as normal.
Thanks all for your advice.