Is it legal to ask an employee to reimburse their own recruitment fees if they leave the job?

[Trunchbull]

I asked a question on the childcare board yesterday after seeing a clause in a nanny contract which states:

"Should the nanny wish to terminate their contract within the first 6 weeks/ 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? Can an employer make their employee pay them back if they leave the position before a certain time in any position, not necessarily nannies? Would it stand up in an employment tribunal?

If somebody could direct me to somewhere I can find the answer I'd really appreciate it.

It's a bit unusual but as long as the terms were clear beforehand and it didn't have the net effect of taking the nanny's hourly rate below minimum wage, I'm not sure I can think of any reason it wouldn't stand up.

No problem, glad to help.

Nice to see you are appreciated.

I always enjoy reading your posts Flowery.

I wouldn't sign up to that clause. The money exchanged between and recruitment agency and the employer is between them. I know from using recruiters that there is often a rebate applied - so if an employee leaves within 1 month 90 percent of the fee is refunded, and goes on a sliding scale down to 6 months. No way should the employee be liable at all. (I don't know anything about nannys but assume this should be the same).

I'm not a lawyer, but I think this clause is far too broad to stand up to scrutiny. It has the effect of penalising someone for wanting to leave their job, and thus restricts the free movement of labour, which is protected in law. Any deductions from wages have to be authorised by the individual - an employer can't just deduct from wages without specific authorisation for the deduction. As far as I'm aware, the general clause would not be sufficient authorisation. And as it reads, it could take someone below NMW which would be unlawful.

From an HR perspective I'm also a bit bemused. The control in an employment situation is largely with the employer - while the nanny would need to agree to the job offer, it is usually the nanny that is the more scrutinised in the appointment process. Therefore if an error has been made such that the nanny would want to leave in a short time, the responsibility should fairly fall to the employer for the cost. Any lawyers reading, I'd appreciate proper guidance as it really feels wrong.

I'd definitely strike through the clause (for all the reasons above) before signing the contract. A contract is clearly between two parties, so amend it until you're happy with it, even if they tell you "it's standard"....

I left a job once where I was deducted £700 for a training course I had attended at the employers insistence. I left within two years and they said this was standard practice even though I had not signed or agreed to it.

To go back to the original OP, I think the clause would stand up, but I would not recommend that anyone sign it.

Vickibee - I would say you should have looked into a claim for unlawful deduction of wages.

That's in our handbook, Vickibee, and I signed a general thing accepting the handbook as well as my specific contract. It's pants if that wasn't the case for you though.

I guess if the expense were deducted then the employee could demand the tax back on it as would be a tax deductible expense

I do think this is crap though. I see it a lot in accountancy training contracts where training costs can be recovered by the employer from the employee. In my opinion if employees are leaving during their training then the employer should be looking into why employees are wanting to leave!