Ex Employer Claiming Money For Training costs

[version302003]

When entering your defence you will included that they havent complied with your cpr request. Dont forget to enter your defence within 28 days of the issue of the claim. Have a look around here http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/ . They relate to credit agreements mainly but it will give you an idea on how to present/format your defence and give you a few pointers.

Edited January 2, 2009 by version302003

[Zamzara]

If you can provide any evidence that the declaration was made in good faith, such as notes of the disciplinary meeting, then it may be worth counterclaiming for a week's notice pay. If they accepted their decision was too harsh but 'company policy' this is also evidence of unfairness. A minor matter does not entitle them to dismiss without notice.

[letterman]

deleted

Edited January 3, 2009 by letterman

[letterman]

Removed, will repost after the case is settled..ex-employer reading to much. Sorry

Edited January 16, 2009 by letterman

[version302003]

Hi letterman, hope you had a good new year.

 

Im out tonight but will start looking at a draft tomorrow (im not that good but all hands to the pump so to speak). So if any one else has some input on a defence would be good.

 

I was reading today about training costs being recovered only if the training would benefit the individual or their next rival employer (like carphone warehouse) etc.

 

When does your defence have to be in by?

 

Have the company included documentry evidence to support their claim? ie receipts, breakdown of costs

 

Also have alook at the "similar threads" at the very bottom of the page, it might help

Edited January 3, 2009 by version302003

[letterman]

Deleted.

Edited January 21, 2009 by letterman
Deleted

[version302003]

Hi letterman, here is a start to a defence which could be improved if we pick at it or add to it. Its a start but there are still things need to be added. The one below is based on if they dont respond to your cpr letter in time.

 

Defence

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.
   
2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -
   
3. The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;
   

a)The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written terms and conditions referred to, the method the claimant calculated any outstanding sums due or any other matters necessary to substantiate the claimant’s claim.

b)A copy of the purported written terms and conditions that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c)A copy of any evidence or proof of any amount outstanding on the alleged amounts, has not been served attached to the claim form.

 

4.Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

5.Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on xx/xx/2009 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the xxxxx referred to in the particulars of claim and (other info you requested under cpr). Also any other documents the Claimant seeks to rely on.

 

6.To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested. All I have received in relation to my request is a letter from the claimant stating I am placing an unfair burden on the claimant by requesting the disclosure of the said documents.

 

7.It is denied, as suggested in point 6 that it is an unfair burden being placed upon the claimant with regards to my request for disclosure and the courts attention is drawn to the fact the claimant has failed to comply with CPR part 16 and Practice Direction 16 in-so- far as they have failed to attach the written terms and conditions and contract they are basing this action on to the particulars of claim as required by the civil procedure rules. Therefore I believe that I am entitled to ask the claimant to supply me the requested documents

 

8.Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant.

 

9.In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

10.Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

11.I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents

[elche]

The issue is how can this be expressed in a defence? I'm sure the court would not accept quotations from web sites, a case president would be useful and I am still searching for that.

 

Personally, my starting point would be that wages are protected from unlawful deductions:

 

An employer may not make a deduction from any wages for any worker employed by him or receive a payment from a worker unless:

 

(a) it is required or authorised to be made by virtue of any statutory provision or any relevant provision of the worker's contract; or

 

(b) the worker has previously signified in writing his agreement or consent to the making of it (s 13(1)(a), (b) and s 15(1)(a), (b)).

 

Thus the only way the employer could recover any sums from the employee would be via previously signed written agreement providing a contractual right to the employer to recover.

 

And your case law is here:

 

Potter v Hunt Contracts Ltd [1992] IRLR 108, EAT: Mr Potter started employment with Hunt Contracts Ltd on 27 March 1989. Before this he had been employed by a drivers' agency. The agency had placed Mr Potter on a course for HGV drivers and he had entered into an agreement with them that, should he leave within a given period, he would pay some part of the fee for that course. The fee was £545. At the time he joined the company the company agreed to pay the agency the fee of £545..... The central part of the loan agreement read 'should you leave the company within 24 months from the date of your joining, you shall be required to return the fee on a diminishing basis based on £22 per month'. Held, this did not satisfy the requirements of [s 13(1)(b)]. To fulfil the condition that the employee should have previously signified in writing his agreement or consent to the making of a deduction there must, said the EAT, be a document which clearly states that the deduction is to be made from the employee's wages. It must also make clear that the employee agrees to the deduction being made from that source.

 

Not quite exactly your situation but similar:

 

see also for broad consideration of agreements pertaining to permit deductions

 

Pename Ltd v Paterson [1989] IRLR 195

Kerr v Sweater Shop (Scotland) Ltd [1996] IRLR 424

Fairfield Ltd v Skinner [1993] IRLR 4, [1992] ICR 836, EAT

Discount Tobacco and Confectionery Ltd v Williamson [1993] IRLR 327

 

 

If you need more case law, PM me and I'll see what I can find.

 

Hope this helps

 

Che

[letterman]

Thanks elche,

 

Couple of questions.

 

My son did sign a copy of his contract of employment which has a clause for deductions, see it here http://i413.photobucket.com/albums/pp214/letterman_bucket/contractred.jpg

Can they deduct under the pecuniary loss part?

 

Should I include the section quoting Potter v Hunt contracts Ltd in our defence submission?

[letterman]

Removed, will repost after the case is settled..ex-employer reading to much. Sorry

Edited January 16, 2009 by letterman

[version302003]

hi letterman, nice defence , dont forget to add on that the poc's dont include travel expences (coach) but are included in the amount claimed.

 

Also might be best to number the paragraphs so they can be found by all easily when discussing them on here (and in court if it ever gets that far).

[letterman]

Removed, will repost after the case is settled..ex-employer reading to much. Sorry

Edited January 16, 2009 by letterman

[elche]

Hi Letterman

 

I hadn't read the whole post earlier (was rushing to get a swim before the pool closed!) so wasn't aware that we had a document pertaining to allow deductions.

 

I'm going to PM you some info - but I do know from previous research in this area that ET's and I'm assuming also county courts have interpreted the scope of such clauses very narrowly.

 

I have PM'd you some more info.

 

Not had chance to look at your defence yet - but no doubt other caggers will have their opinions on that.

 

I think you said it was due in on the 20 (something) of January - so time yet.

 

Che

[letterman]

Any caggers with experience with filing a defence who can take a look over the one I have posted and offer feedback please?

 

Also when I file this do I send two to the court or one to the claimant and one to the court?

 

Finaly if want to quote case law precidents, do I copy the entire case precident verbatum in to my defence of just refer to the case, where would it go in the defence document?

 

Cheers all.

[patdavies]

Any caggers with experience with filing a defence who can take a look over the one I have posted and offer feedback please?

 

Also when I file this do I send two to the court or one to the claimant and one to the court?

 

Finaly if want to quote case law precidents, do I copy the entire case precident verbatum in to my defence of just refer to the case, where would it go in the defence document?

 

Cheers all.

 

You need to quote the case in the same manner that Elche provided the example of Potter above (ie case name, date, jurisdiction and then the quote from the case that is relevant)

 

You should remove the bullet points and number all paragraphs without subparagraphs, to make it easier to refer to.

[letterman]

OK Thanks Pat, appreciate the response.

 

Just the final question of do I send a copy of the defence to the claimant or does the court do that.

 

Sorry to ask so many questions but this is the first time of dealing with a court claim.

[patdavies]

OK Thanks Pat, appreciate the response.

 

Just the final question of do I send a copy of the defence to the claimant or does the court do that.

 

Sorry to ask so many questions but this is the first time of dealing with a court claim.

 

You do

[letterman]

Got a solicitor to prepare the defence on this. He has experience of similar claims and is certain that we will win. [Oh this was BS we didnt have any solicitor but we had a suspicion that Paul Green was reading the posts on here so we wanted to throw him of the scent]

Edited July 3, 2009 by letterman

[letterman]

OK so here is what we hope will be the final update on this case. Today we attended the small claims court on this and I can now reveal that it was Phones 4 U Ltd who took the action to attempt to recover money in relation to training expenses incurred by the comapny.

 

The short story is we won! The district judge decided that as we have said in our defence all along, the clause 16.1 in the contract of employment was not valid and that Phones 4 U Limited could not claim the money under this clause. When we entered the court the district judge imiediately told Paul Green (Legal Officer for Phones 4 U) that she had read the claim and the defence and was confused as she could not see on what basis Phones 4 U were claiming the money, Paul Green replied that they were claiming on 16.1 of the contract of employment which states

 

"The Company reserves the right at any time during your employment, and in any event on its termination to deduct from your salary any sums owing to the Company including, but not limited to, excess holiday taken, advances and expenses, car fines, outstanding relocation expenses/study fees, pecuniary loss or damage of company property. You hereby consent to such deductions being made."

 

The district judge then pointed out to Paul Green that as the defence had pointed out on numerous occaisions clause 16.1 does not make any provision for reclaining training costs, inf act it isnt worded sufficiently to claim any costs from an employee, she then asked him again if he had any other basis for the claim, after much awkward fluffing around by Paul Green he had to admit that he was relying on the fact that the 16.1 clause says that Phones 4 U can claim for pecuniary loss and this is the only basis of the claim.

 

The district judge pointed out to Paul Green that clause 16.1 was not specific regarding how much and for how long and in what circumstances the company could claim anything, she pointed out that if that was upheld Phones 4 U Ltd could pretty well claim anything at anytime from anybody regardless of circumstances. She then informed him that she was dissmissing the claim, at this point the fun begins, he was clearly very annoyed and was visibley losing his temper, he looked over to us and said this dosent preclude Phones 4 U from reissuing the claim on a different basis! Well such a flagrant dissregard of a district courts judement did not go down well with the judge, she in no uncertain terms pointed out to Paul Green that she had just dissmissed this case if he did choose to go down that route that she was sure the defedant would ask the court to strike out the claim as it would be an abuse of the court process. Jeez, what an idiot! of course we would have it struck out.

 

At this point Paul Green (Legal Officer for Phones 4 U Ltd) was getting up to leave, I stopped him and asked the district judge if we could recover costs for time spent preparing the defence and witness statements plus loss of earnings for the defendant, she would not allow costs for preperation of the defence but did allow loss of earnings which she said was capped at £50 per day maximum and promptly granted £50, Paul Green then started to even argue this asking for proof of the loss and asking if it was taken as holiday, the judge politely (but firmly) pointed out that holiday or not the defendant has still lost a days pay and she didnt require proof.

 

So that was the end of the case, well not quite . On the way out Paul Green who by this time had completely lost it (much to our amusement) said that this ruling dosent stop him reporting the defendant to the police for fraud! What a bozo! I told him that I would recommend that he shut his mouth and get on his way, he then accused me of threatening him! I pointed out that I wasnt threatening him but simply recommending he shut his mouth and go otherwise we would consider his actions as harresment, I also just reminded him he was a loser as he left.

 

So we will be waiting for the police investigation for fraud, we have numerous defense arguments already prepared for this so we dont really care.

 

What is astounding is that Phones 4 U (who I do think is a reasonable company) should allow their Legal Officer to behave in such a maliscious way, clearly Phones 4 U are not a very good employer. This action was unreasonable and reflects the company in a very bad light. John Caudwell would be horrified to see an officer of the company he founded acting in such a way. Paul Green is obviously very inexperienced and should never be in a position with Phones 4 U where he can take legal action without clearing the case with a solicitor who is conversent with employment law.

 

Incidently had the District Judge allowed the 16.1 clause from the contract of employemnt we had 5 more defence arguments, any one of which would have got the case dissmissed.

 

Also I am amazed that in the witness statement Phones 4 U sent a copy of of the complete delegate list for the training containg all their personal information! Surely this is harldy compliant with the data protection act, I wonder if Phones 4 U Human Resourses department know that Paul Green rides rough shod over the care of their employees personal data!

 

I am now wondering just how many of Phones 4 u's ex employees Paul Green has threatened and extroted money from based on an unenforceable clause, we do have the list of employees that he provided all of which have mobile phone numbers, I guess we could ring them all and find out if any others have suffered and paid back money, if they have I assume they could now reclaim it back as this case has set a precident.

 

Still, all in all a good result!

 

Thanks to all that contributed in advice and tips. I'm now fairly good on employment law in relation to deductions from salary, anyone stuck on this ask away, I will be glad to help.

Edited July 3, 2009 by letterman

[Veda_1]

Hello,

I am new to this forum and have happened across it while searching for circumstances similar to mine.

 

I have worked for my employer for 3 years, have handed in my notice and am currently serving my notice period. 7 months ago I sat an exam and attended a course which my employer paid £1300 for, they have written to me advising that this will be deducted from my final wages.

 

The following is in my contract, and is what they are relying upon to make this deduction:

 

"Miscellaneous 1. For the purposes of the Employment Rights act 1996 you hereby authorise the Company to deduct from your pay any sums, which you may owe, the Company including, without limitation, any overpayments or loans made to you by the Company."

 

Nowhere in the contract does anything about training expenses specifically appear. I did not sign any other contract or document in relation to the expenses at any time during my employment.

 

Before signing my contract I sent an email to the Company asking if they would pay for my exam expenses (I sat one per year). HR replied that yes they would pay all fees/exam expenses. I still have the email and my company does not dispute the exchange and admits no claw back "policy" was in place at that time.

 

8 months after I joined they sent a company wide email which said there had been changes to a policy including "clarification of claw back arrangements for leavers". The email didn't state the policy, it just provided a link to where it was on the internal website nor did it say what the claw back arrangements were other than to say they had be clarified, effective immediately.

 

My employers are saying that therefore "We consider that you were given fair notice of this policy change, and that you raised no objection to it. In fact, you have only objected now, almost two years after the policy change was implemented. Accordingly, we consider that you accepted the change in policy which superseded the position stated in the e-mail from xxx 2008".

 

They then say that the Miscellaneous clause in my contract (above) gives them the right to make the deduction under section 13 of Employment Rights Act 1996.

 

What made me think it was similar to this case on this thread were the comments made by the Judge, the fact that by their logic they could decide that anything could be deducted from my wages just using that clause and sending an email which doesn't seem right.

 

So has anyone had any related experiences in front of an employment tribunal that they could share to help me?

Is it as cut and dry as they need to have had training expenses mentioned explicitly in the clause or made me sign something else or am I missing something?

Any help very much appreciated.

Veda

[mariefab]

8 months after I joined they sent a company wide email which said there had been changes to a policy including "clarification of claw back arrangements for leavers". The email didn't state the policy, it just provided a link to where it was on the internal website nor did it say what the claw back arrangements were other than to say they had be clarified, effective immediately.

Do you have a copy of the changes shown on the internal website?

If so, can you post them here?

 

 

 

[Veda_1]

Thanks for your post,

 

I got a copy of the policy at work today, the relevant section is below it reads:

 

“Financial Support

The following contributions will be made:

Entry fees to the Institute;

Annual Membership fees;

Course fees subject to satisfactory progress being made in the exams. This includes any set text books, tuition courses and examination fees for at least the first two sittings of each exam. The company will pay for courses for the first attempt only and a "self marking" or "reading" basis for subsequent attempts.

The number of subjects to be taken at any one exam sitting must be agreed with the Department Manager at the start of each study session.

Important: Should an employee leave the Company, the Company may deduct all costs for professional qualifications incurred during the previous 12 months from the employee’s final salary. “

 

 

The bolded text (this is also bolded in the document) was inserted eight months after I joined. I did not know it was inserted, as the way it was dealt with in the company wide email was too vague to raise alarm bells:

 

“Dear All,

The Policy document and the agreement form have been updated and are effectively (sic) immediately. The key changes you will find are:

· An opening statement of the Company’s policy on Professional Qualifications

· A streamlined summary of support and awards for key qualifications

· An additional section on Other Qualifications including MBAs

· Clarification of claw back arrangements for leavers

 

The updated policy document can be accessed here xxxxxxxxxx

Should you have an queries please speak to a member of the HR team.

Regards

XXXX”

 

 

I have just found the agreement form to which they refer in that email (I had previously asked HR about this and they fluffed a oh it’s nothing response) it contains the following statement “ I have read and understood the terms of the Professional Qualifications Policy: Signed (employee) “

 

I did not sign one of those.

 

I phoned ACAS helpline because I wanted to ask a very specific question. Because the work contract clause does not mention training costs specifically only sums owed, loans my main argument has been it would be an Unauthorised Deduction that they could not make without my permission. My employer is saying that they have taken legal advice and that they can make the deduction due to that clause, even without it mentioning training expenses. I don’t believe they have taken specialist employment law advice, they have just asked internal legal dept.

 

ACAS weren’t much help anyway , but she did say if it was a policy of the employer then they could do it if I agreed to the policy. In the cover letter that is attached to my contract reads “ The Company also has it’s own internal procedures, which you are required to observe at all times; details of these will be made available to you when you join the Company”. I didn’t sign that letter, it was just a cover letter.

 

 

I would like to know if it is straight up illegal or not. Doing more searching I have come across the 'implied term' phrase, I think this means they wouldn't have to state 'training expenses' explicitly and could rely on it being a routine proceedure that they do.

 

I have written and objected several times, said I'm withholding my permission for them to make any deductions.

 

 

Veda

[SarEl]

I would like to know if it is straight up illegal or not.

 

And there's the problem - there can't be an answer to that question. The change was made a part of your contract and notified to you as a document which you should have reviewed at the time - on that basis it does form part of your contract and is therefore enforceable in law. The fact that you didn't review it or didn't realise the implications isn't relevant. On the other hand you appear to be saying that you couldn't have known about the clause and didn't agree to it. So both arguments have merit, and the only answer to this one, if it cannot be resolved amicably, is "see you in court". Sorry, but the employers argument has merit - so does yours. And the only arbiter of this would be a court. Which is a dodgy way of settling it as you could loose and end up owing the company even more. I'd probaby strongly advise that you try everything you can to avoid a court deciding, even if that means a bit of compromise on both sides, if such can be achieved.

[mariefab]

I agree that a negotiated compromise is the best way to go in these circumstances for all the reasons that Sarel has comprehensively explained.

You may find the information in the link below of assistance to you when discussing this with your employer.

 

http://www.xperthr.co.uk/faqs/topics/1,6/variation.aspx?articleid=90686&mode=open#90686

 

[honeybee13]

I don't know which exams you took or whether this question is relevant, but did you pass? I noticed there is something in the employer's blurb that mentions it.

 

HB