Juliet Barvo
Member
- Joined
- 24 Oct 2017
- Messages
- 187
Surprising that someone would choose to leave Southern as the T&C's are quite good. Can't even really describe the work as "Metro".
Many ways to challenge a Training Contract
The rule against penalty clauses
The clause contains a repayment provision if the employee leaves employment within a certain time frame after being booked on, or attending, a training course. Occasionally, an employee will argue that this type of clause is a penalty and therefore unenforceable. However, a clause of this nature will only be construed as a penalty if it imposes a detriment on the employee and this is out of all proportion to the interest which the employer is trying to protect. If the clause is proportionate, a genuine pre-estimate of loss and reasonable taking account industry norms there is less chance of it being unenforceable.
Restraint of trade
An obligation to repay training costs may have the effect of discouraging an employee to leave, and so be an indirect restraint of trade. This has not been fully tested in the courts so ensuring the clause is proportionate remains a key principle.
(A person may be advised that the repayment amount is so large that it deters people from leaving, and thus is a restraint of trade, and thus unenforceable, and chose to leave with the belief that a Court will not enforce the agreement).
Sliding scale of repayments
The clause provides for the rate of the repayment to be on a sliding scale according to when the employee ceases their employment. This is to reflect the fact that the longer the employee remains with the employer, the more benefit it receives from the employee’s attendance on the training course. The amount of the repayment and its corresponding timescale will be relevant to determining whether the clause is a penalty clause. Employers should avoid making the repayment period too long as it may indirectly discriminate against employees on grounds of age, sex or disability. This is because it is arguable that female, older or disabled workers are often less able than others to remain in continuous employment for prolonged periods of time.
Proprietary estoppel and laches
1. an assurance of sufficient clarity;
2. [reasonable] reliance on that assurance; and
3. detriment in consequence of the reasonable reliance.
i.e. Job not as described
Laches is the principle that the claimant who seeks an equitable remedy must come to the court quickly once he knows his rights are being infringed i.e. you snooze you lose.
