Flowery or anyone - nanny signed employment contract to start work in September but has just phoned to say she is taking another job. What rights do we have?

[BoffinMum]

This has been a bit of an ongoing saga, but basically in May we interviewed a nanny, and invited her to do a paid trial day for us. After the paid trial day we offered her the job immediately, as we thought she was very professional. She took a week to accept.

After a lot of messing around on her part (five weeks) she eventually signed a standard agency contract of employment for a permanent full time post. In the contract she was due to start work on 1 September. She has just rung to say she has been headhunted and offered a better job and won't be coming to work for us after all.

Any advice on breach of contract issues and associated liabilities? Obviously the agency are trying to find us a replacement very rapidly, but as it is so late in the day, it may be we have to hire someone via another agency, thereby incurring a further agency fee, for example.

Well yes technically she has breached her contract, but to be honest I can't imagine for one moment it would be worth your time effort and money to take any kind of legal action against her. You would need to go to I think the county court and prove actual financial loss.

This one is probably best filed in the Lucky Escape file of bad experiences I reckon....

Well, if I have to shell out another ££££ to a different agency in order to get someone with baby experience in time for my return to work, I imagine I could apply to the small claims court to have that refunded to me from her? That would probably only cost me about £100 to do. We could easily quantify this duplicate agency fee as a loss.

Similarly I imagine in principle I could insist she works out her notice? I say in principle because that would not be great for the kids.

However I am not inclined to make things particularly easy for her.

No you couldn't make her work her notice, no. Her employment hasn't started yet so her notice period isn't enforceable. It would be about making a claim for financial loss incurred as a result of her not starting employment.

Ah, I see.

Well if the fates send me a nice replacement, then perhaps I will feel less vengeful, and put my energies into something less negative than this plotting!

'Snot fair though

Did you get the nanny from an agency?

Yes, and they are actually being rather spiffing in sorting out replacements. They feel as awful as I do about it all.

Its a real shame when this happens there you are feeling good about the nanny and then she bails out on you . I have heard of quite a few stories where the nanny has thought she has secured a job and then for the parents to bail out . As bad as this is I would file it under not worth the stress going to court file . You dont need the extra hasel and to be honest I think you have had a real lucky escape .

Seems to me that your recourse would be with the agency.

Check the contract as they may be liable. In any case, they are much more accountable and also have the ability to rectify the situation.

I imagine the contract with the agency says they have to supply a suitable replacement or refund your fees, assuming you've paid them.

You do have a contract directly with her as well now, but I would really let it go. It's really irritating and frustrating, but if you look at it the other way round, if you had a friend who had a concrete job offer and just wasn't 100% sure about it being the best job for her, and had a couple of other leads in the pipeline, nothing concrete, you may well advise her to take the first job, and then take her time about signing the contract to hedge her bets a bit.

Similarly if a friend took a job she really needed to take for financial reasons but then had her dream job offered her before starting the job, you'd probably advise her to take the new job and let the first one down.

Because it's a nanny job it feels and is very much more personal, and she was wrong to sign the contract if she wasn't sure, but in this climate it's understandable to accept a job you're not sure about. If she wasn't sure about it chances are she'd have let you down a bit later on anyway, and better to have minimum disruption now than her start and then leave within a month or two. It really is a lucky escape; it has to be right for both parties and it obviously wasn't for her so it wouldn't have worked out anyway.

best of luck finding someone else anyway, I know it's hard!

Well Flowery, tbh, I would have advised a friend to have an open and honest discussion with the employer she was committed to, and encouraged her to offer to work for a bit until the employer had got herself sorted. Is that too old fashioned?

Not old fashioned, no. Not sure how realistic it is though. For many people that open and honest discussion would result in a withdrawal of the offer, leaving them with no job at all. Employers want people to be committed, at least when they start the job, and (although this may not apply for you), most employers at the moment have no trouble recruiting so would rather take another good candidate who really wants the job than take a chance on someone who is likely to be off again in a few weeks.

Similarly for most employers there would be more disruption involved in an employee starting work without motivation and focused on something else then leaving within a couple of weeks than there would from a candidate not starting employment in the first place.

In terms of what I'd say to a friend about accepting a job they weren't 100% sure about, it would obviously depend on their circumstances, how badly they needed a job, what they felt the reaction of the first employer would be, and what the chances of the dream job coming up actually were (often slim at the moment).

If a friend had a accepted a job offer and then before she'd even started the job, her dream job came up, I would advise her that obviously ideally she shouldn't have accepted the job in the first place, but I would in most cases I think advise her to take the dream job at the cost of irritating the first employer as hopefully a new job is a long-term decision and should be made with a long-term view.

Regardless of what advice you would personally give, I'm sure you see my point that it happens relatively frequently, and it's better for you to have irritation now than a demotivated, uninterested employee who then leaves in a few weeks. Although it's not great behaviour on her part at all, depending on her individual circumstances, imo it could be understandable.

Interesting, Flowery, I think you're talking good sense there and I do see your point. Many thanks for all the advice.