Employer Requesting Study Support Reimbursement After Resignation

[Alarae21]

Thanks for replying Ula

In response to your questions:

1. Taken from the letter extending my study agreement - "With reference to clause 2a) of your Trainee Contract signed by you in March 2016, I'm writing to confirm that the Company wishes to extend the contract to 31 July 2018, after which we hope to conclude with you a new permanent contract."
(2a - "Subject to the provisions below, this agreement is anticipated to last for a period of time commencing on 1 March 2016 and continuing for a period of 24 months expiring on 28 February 2018 unless otherwise agreed in writing between you and the Company.)

2. If I am honest, I actually do not know the answer to this question. No where in the training agreement does it state it supercedes my permanent contract. It does however make reference to my original start date for the purposes of continuous service. It is essentially identical in its terms and conditions to my permanent contract, just with the added clauses about the qualifications and associated leave and costs.

3. It was just a letter stating they were extending the training agreement. Other than the date, it states all other terms and conditions are unchanged.

4. There is no sliding scale for repayment. It is all costs within 24 months from giving notice.

5. Nothing in my permanent contract about repayment of training costs. It is a vanilla contract. The only deductions it allows for are overpayments, loans, excess of holidays, excess of sickness payments, excess of claimed expenditure, excess of any other payment made to [me] by the company and any monies agreed by you in writing. Other deductions were for damage to company property.

If it is of any help, I can PM any documents you might think would be helpful to review. Although I think saying that might be a cheeky request..

[CLL1]

Two arguments that will help you out:

(1) Restraint of Trade (Cox J guidance in TFS Derivatives Ltd v Morgan [2005] IRLR 246 QB at [36] to [38] and [43] = the correct approach to the three stages of constructing ROT.)

(2) Penalty clauses (Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67, [2015] 3 WLR 1373 – see in particular Neuberger at [31])

[Alarae21]

Hi CLL1 , thanks for posting.

I have had a look at the two cases and while I understand the precedent they set, I do not know how I could use them to support my case. In my circumstances I have been provided a clear schedule of the costs that have been incurred during the 24 month period, so I believe that would satisfy the element of a 'pre-estimate of loss'. The training was with an external provider leading to a recognised qualification, not in-house where the value could be dubious.

I understand as there is no repayment schedule the 24 month period in its entirety could be seen as punitive however unfortunately in my case most of the costs were incurred in the last 12 months from notice so I do not believe it would make a great argument, as even if it were on a sliding scale I would still be liable for most of the costs in full regardless.

The only other issue I can see from my study agreement is that it only discusses my first qualification and not the second one I proceeded on to. I would expect however that it would be implied that I agreed to the study agreement also applying to my second qualification by virtue of conduct.

A lot of my argument hinges on whether they can argue that my fixed term contract continued on implied terms by virtue of me continuing to work, therefore bound by the same terms and conditions (and subsequent study clawback). This is what my ex-employer is banking on and it is what I am trying to deny.

[ULA]

Many thanks for the answers to my questions which are helpful.

Can you PM me the original contract, the study agreement and the extension letter please, I would just like to see everything in context if you do not mind.

[Alarae21]

Ula Thanks for your time Ula, I've sent the documents via PM.

[ULA]

Do you have any email/documents between you and the company about the potential of any offer at the end of your study period? Also do you have any emails between you and the company preceding the 9th Aug on the matter?

[Alarae21]

Ula

Other than the sentence contained in the extension letter, I do not recall receiving any other documentation about it. It was presumed that my employment would continue and my employer at the time almost viewed the permanent contract as a formality. There were many conversations that they wished to retain me and a new contract would just formalise the situation. Admittedly they were a bit lax with getting things put in place- it was never done 'on time' or in advance of the event.

No other emails I have preceding the 9 August unfortunately. From what I can recall there was not any specific email correspondence about the contract- there wasn't even a formal email invite to the meeting with HR to discuss the expiring study agreement, just a one-line 'are you free to meet at Xpm'.

I do not have access to my old work emails to double check, however I am certain there was nothing substantive in the as I would have saved them. Other than the email trail I sent you, most discussions took place verbally.

[ULA]

Ok thanks for that. Can you me know what happened in the meeting with HR discussing the expiring study agreement?

1. Did they confirm a permanent offer would be made?
2. If so did they discuss any terms around that offer?
3. Did they confirm it would start from 1 Aug?

Thanks and sorry to bombard you with questions, just trying to ensure I check everything.

[Alarae21]

Please do not apologise Ula , you have been a massive help. More questions the better!

Before I go into the specifics, a brief overview of the meeting was basically to clarify my contract status as it was expiring at the end of the month (July) and I should not be in a position where I am effectively working without a contract. It was expected that I would have qualified in mid-July, however I had an exam to take in November. They were not going to provide any further funding for this, as I had already been on the training course back in May. My refusal to a study agreement extension was because it would not be beneficial to me, especially when I would be studying at my own cost (holidays, etc).

On to the specifics;

1. They did confirm that they were going to provide me with a permanent contract.

2. No terms were discussed other than the fact I would go on to a standard contract, which would increase my holiday to the normal 25 days, as opposed to the 20 days which are contained with trainee/study agreements.

3. In the meeting it was confirmed that the permanent contract would start from 1 August, so there would be no gaps. The second study agreement extension came after this (August), as HR did not produce the permanent contract in time for me to sign before the study agreement was due to end. This extension was to basically give themselves extra time to get the permanent contract in place. I refused to sign this document and I kept the original they gave me.

[ULA]

Thanks for that additional information and based on all you have sent me and the responses in your recent posts my opinion is that this is still worth at least responding to their letter.

Clause 9c of the Term Agreement states that “At the end of your anticipated period of employment, your employment will be terminated. The Company at its entire discretion may offer you further employment.” Since the terms of this contract were extended

by virtue of the signed document dated 27 Feb 2018,

to 31 July 2018, it means that on this date your employment would be terminated and thereby the terms of the employment ceased to be valid. Therefore, the contract terms were not valid beyond 31 July. A new contract could be offered but that would be on new terms as the Term Agreement period of employment has expired.

I have noted that the email to you on 9^th August states “We will continue with your existing contract until the new one is agreed…” however in your response you have not agreed to this and maintain your position of reverting to your original contract. His response on 10 Aug does not indicate that this is not acceptable. In addition, you have the meeting with HR at which it was confirmed your new contract terms would start on the 1 Aug and that it would be on a standard contract which I assume would be similar to your first one.

My suggestion would be that you either go back to your solicitor to draft a strongly worded response denying they have a claim or you can draft one yourself which I am happy to review.

[Alarae21]

Ula Thank you so much for taking the time to review the documents and come back to me. Even though Mariefab did give her(?) opinion which was the same as yours, receiving an actual solicitor letter from the other side did make me wobble.

The first letter my solicitor sent pretty much set out what you stated and was strongly worded in an attempt to nip this in the bud. Unfortunately I cannot afford any further legal costs and everything was said in the initial letter.

I did not realise until recently that my house insurance includes legal cover, so while I know they are not exactly the best it is the only option I have for some form of legal counsel, otherwise it will be me on my own. Obviously this is subject to them actually taking on the claim, which they may not. I checked various legal clinics but I didn't find any that would cover me.

Will keep you all updated.

[ULA]

Thank you for the update and I appreciate that getting a letter from a solicitor is very daunting even if you believe you have a strong case.

Certainly as you have house insurance that covers legal costs then contact your insurer and see if this issue will be covered by them if so that is great as I do think you have a strong case having read all the correspondence you sent me. If they cannot cover it then let us know we can support you in drafting a response to the solicitors letter.

Do pop back and let us know how you get on.

[Alarae21]

Back again!

Unfortunately my legal expenses cover stated they would not take on my claim as they didn't believe I had a 51% chance of succeeding. So that was disappointing.

In the meantime, I did state to their solicitor that until they could provide a full basis of why they believe I was contractually liable to repay the costs, my position would not change. It did take a while for them to respond (and I was blindly hoping they would go away) but they did.

The letter they have sent me states that is in accordance with the Pre-Action Protocol for Debt Claims, so I believe my ex-employer is going to push this all the way to court should I not respond with a repayment plan.

They do mention in their letter that the contract had an expiry date of 31 July 2018, and that conversations with my ex-employer were entered into regarding either the extension of the contract on the same terms or a new employment contract.

They state their argument is:

"As a new employment contract was not entered into, the contract continued on the same terms. We are instructed that you continued in your role as XX and continued to be paid your salary in relation to this role until the end of your employment on XX.

We also note at XX of the contract that 'these terms and conditions of employment contain the entire Agreement between the Company and the employee and supercede all previous or prior arrangements and understandings whether written or oral and previously entered into, agreed or practiced by the parties. The relevant terms governing the relationship between you and our client were therefore pursuant to the terms of the contract and not the previous employment agreement as alleged by you and your previous solicitors."

Effectively, they are stating that my expired contract was implied to continue. Can they allege this even though I verbally, and in email, stated I did not want to continue on it and that for me to continue to work was as on similar terms to those imposed on my previous contract (even though the state the study agreement supercedes this)?

All information I have seen states that while a contract can be implied to continue, it is only when both parties do not dispute to the terms. If one party disputes the terms, then the court can determine what terms were implied to continue, which could be all, or part, of the terms. The terms they are implying to continue were of no future benefit to me as they would no longer fund my training, and continuing with them was wholly punitive. Would this then fail the basis principle of contract law (offer, acceptance, consideration) as there is no consideration provided to me (in respect of future funded study) for these punitive terms to continue?

If anyone would like to see the full letter I am happy to PM. The rest of it was basically background and how I should make payment.

[ULA]

Hi Alarae21, sorry to hear that your case will not be undertaken by your legal expenses provider due to the success odds. I would caution that you should bear this in mind, particularly as I believe the claim is greater than 10k and if you lost as I have previously stated

should you lose you would potentially be liable for the other side's costs.

I can re-read the documents you sent me to review and given that you have now been sent a letter in accordance with Pre-Action Protocol. I am also going to tag Amethyst whose expertise will be useful on this given that it looks like they are determined to pursue this.

[Alarae21]

Hi Ula, thank you for popping back in.

The costs are a worry however I do feel stuck between a rock and a hard place. It was only due to my conversations with HR that I stayed on past my contract expiry date, as I stated on numerous times (pre and post contract expiry) I did not want to continue on a study agreement as it offered no future benefits and in my view, was wholly punitive from 1 Aug. If they had not led me to believe they were happy for me to continue to work as I stated on my terms, I would have let my contract expire and would not have continued employment with them, meaning they would have no chance at clawback. If I had done so, they would have been stuck as there would not have been any handover of clients.

While I am fully aware that legal outcomes are not necessarily fair through an individual's eyes, surely it is unfair if I am deemed having to pay back these costs simply because of my faith in HR and our discussion re terms of my continuing employment, as opposed to just leaving at 5pm on 31 July basically scot-free?

In addition, because they lead me to believe they were happy for my employment to continue on terms as I stated, I then did not negotiate with my new employer to cover prior costs as I was led to believe they would not be due. It is common in my industry for this to occur, and I am in a position where I have seemingly lost all around.

Perhaps sympathy is not the correct word, however would a court not consider my circumstances considering my employer was not clear in what my continuing employment terms when it was first disputed? It seems I am being penalised because their HR was effectively useless (should have given me my new contract by end of July, only tried to make me sign a study agreement extension so they had additional time to draw it up but said it would be backdated regardless etc..).

Apologies if this is bordering on a rant. I realise emotions have no bearing in a legal argument, however it is hard to keep them separate at times.