Poaching staff: the risks

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    Introduction

    If you are receiving care provided by a care agency whilst you are preparing to receive Direct Payments, this factsheet may contain information which is useful to you.

    Your agency workers may be excellent and because of this you might wish to employ them directly once you start receiving direct payments. However, if you ‘steal’ workers from an agency without their permission it is called ‘poaching’.

    ‘Poaching’ is not illegal but if the agency does not give their permission you and/or the worker may face significant financial penalties.


    Poaching’ agency staff

    What is ‘poaching’?

    When one employer takes staff from another employer it is called ‘poaching’. This can happen when a DP employer seeks to directly employ a worker from an agency that they were previously using.

    If you attempt to poach an agency worker, the agency that employs them may impose financial penalties on both you and the worker to prevent this happening. Agencies commonly include a clause in their customers’ contracts requiring payment of a ‘finder’s fee’ if they poach staff.

    A care agency will do this to discourage their staff from leaving to work directly for DP employers because losing an employee in this way can cause their business to lose money. This is because agencies have to pay to advertise for and recruit care assistants as well as spending money on their training.

    What are the financial penalties?

    There are two types of financial penalty that care agencies can impose if people poach their staff without permission:

    Agency worker’s employment contract

    The agency worker’s employment contract will often state that they cannot be directly employed by a customer who previously used the agency. If the agency worker breaks their employment contract by working directly for an ex-agency customer, the agency might try to sue them for breach of contract to recover lost money.

    Finder’s fees

    As a customer of the care agency, you may have been given a contract for services. This often says that if you try to privately employ one of their care assistants, they will charge you a large fee. This fee could be as high as £1000 for each agency worker that you employ directly. If you refuse to pay, the care agency may take you to court to try to get this money.

    How can I avoid financial penalties?

    If you still want to go ahead and employ an agency worker then you should inform the agency worker that they might face financial penalties. Sometimes these penalties might be avoided by negotiation with the agency.

    Often, at this point, the agency workers will change their mind about becoming your employee because they are concerned about the financial risks they face.

    However, if the agency worker is still interested in working directly for you, it is important that you:

    • advise the agency worker to ask their agency if becoming your employee will breach their employment contract. They should find out what the consequences of this will be
    • speak to the agency yourself and negotiate with them to avoid financial penalties for yourself and the agency worker if possible.

    Negotiation is about balancing what the agency can offer you versus what you can offer the agency. For example, you could offer to use the agency for your emergency-backup care.

    When you have talked to the agency worker and found what would be suitable for them, you could discuss alternatives with the agency, such as the agency worker continuing to work with the agency part-time when they are not working for you. It is important to get any agreement in writing.

    Please note that if you choose not to talk to the agency and they take action against you, this will be your personal responsibility. Social Services may consider it a mismanagement of your Direct Payments if you or your PA are fined and/ or sued by the agency.

    It is not a small risk:

    • ‘poaching fees’ are large
    • care agencies do take legal action against people who poach their staff

    Alternative ways of recruiting staff

    There are lots of other ways to recruit PAs and it is almost always unnecessary to poach agency staff.

    Independent Lives has a variety of fact and support sheets to guide you through the process of:

    • advertising for a new PA
    • sifting and shortlisting applications
    • interviewing applicants
    • inducting new PAs
    • managing and supervising PAs

    These are all available on our website www.independentlives.org.

    If you would like more information on recruiting a new PA you can call our Information & Advice Service on 01903 219482 and they will be able to discuss your options with you.

    Last updated:  3rd November, 2022