Early Years Equality (EYE), a rights-based organisation, has been approached by more than 130 nursery workers seeking advice about the issue of being blocked from making local job moves in the past six months.
The issue is affecting nursery workers across the country employed by private nurseries, many in junior positions.
Some nursery staff have reported that there are clauses in their contracts which seek to prevent them from moving to other settings, unless they are more than 25km away.
These clauses – known as restrictive covenants – are written into a contract to prevent employees from moving to a competitor organisation for between six months and two years. Some also include geographical restrictions.
Chrissy Meleady, chief executive of EYE, said:
‘We’re calling on employers to review this and think fairly. Employees want the situation to be resolved amicably,’ she said.
She added that some employers ‘are well-known names and some are in several localities, or some are in two locations’.
Managing director of HR4Nurseries, Jacqui Mann, said that one of the reasons that there may have been a rise in restrictive clauses in contracts could be due to recent changes introduced by the government around GCSE requirements.
‘Nurseries are finding it very, very difficult to recruit now,’ she said. ‘With the changes that the Government is making regarding qualifications, they’re trying to get staff to stay.’
She said restrictive covenants were ‘quite old-fashioned’ and that ‘they were typically used in the hairdressing or beauty industries’.
She added: ‘I don’t see why it’s really relevant to the nursery sector,’
However, Ms Mann acknowledges that these clauses are ‘fair in some cases’. For example, where there is sensitive information and product knowledge, and in cases where the employee ‘could take a lot of staff with them, there will often be a clause not to poach staff’.
Andy Harris, a solicitor specialising in employment law from Sheffield Law Centre said that restrictive covenants are not generally enforceable.
He said: ‘Restrictive covenants are very difficult to enforce because what you’re saying is that someone can’t work.’
Employers could not ‘prevent them from going somewhere else using their skills and experience built up in their career.’
There is also nothing to stop parents from choosing to move their children to another nursery if an employee moves to another setting, because they are exercising their choice.
What do you think of using restrictive covenants to keep nursery staff from working for a rival setting?