Childcare Counsel - breaks and post-termination restrictions

Q Is there a legal obligation to keep a record of breaks taken by staff and can the nursery force its staff to take breaks if their preference is to work through?

A There is no legal obligation to keep a record of breaks taken, although some nurseries do keep such records as a matter of course. This can be prudent in the event that a dispute arises.

Employers must ensure staff can take rest periods, but aren’t required to force staff to take them. Staff can elect not to take their breaks, provided this does not result in a risk to health and safety or breach the 48-hour average weekly limit (where no opt-out is in place).

Q One of the nursery’s staff has resigned and gone to work for a competitor. There were post-termination restrictions in her contract preventing her from working for that competitor. However, the nursery can’t locate any signed copy of the contract. Can it still seek to enforce the restrictions?

A In the absence of a signed contract or other evidence of acceptance, the nursery is likely to have difficulty in enforcing the restrictions, as demonstrated in a recent High Court case.

It is legally possible for contractual terms and variations to be valid in the absence of a signature. However, the individual’s conduct would need to clearly indicate their acceptance of the terms. For employment terms which are of immediate effect, such as a particular shift pattern, the fact an individual works under that arrangement is likely to prove sufficient evidence of acceptance. However, for terms or changes to terms which are not immediate and which rely on some contingent event, such as restrictive covenants, there needs to be clearer evidence of acceptance, such as signature or confirmatory email.

In the recent High Court case, the employee had gone through a number of contract changes as her seniority increased. Each of the contracts issued to her contained restrictions on her post-termination activities (including preventing her from working for a competitor). However, she had not signed any of those contracts. The employer’s failure to pursue her acceptance, whether by negotiation or coercion, proved a fundamental flaw and the action to enforce the restrictions failed.

This recent case therefore serves as an important reminder that, in addition to ensuring the covenants are reasonable, employers need to be proactive in ensuring that they have a signed acceptance of restrictive covenants or changes to those covenants.