Training claw back

**charitynjw** · 2nd April 2012, 22:00:PM

Re: Training claw back

Link to previous thread http://www.legalbeagles.info/forums/...ad.php?t=33076

**bluebottle** · 2nd April 2012, 22:05:PM

Re: Training claw back

Discogirl,

What were you told by ACAS? IMHO, what your former employer is doing may well be illegal. Once we know what ACAS said, it should become clearer what advice you need to move forward.

**discogirl78** · 2nd April 2012, 22:17:PM

Re: Training claw back

With regards to ACAS, the first thing there were interested in was the non-payment of wages, which they were very helpful with and I finally got my cheque on Friday (and P45), so I couldn't thank them enough for that.

With regards to the recouping of training costs, they have advised to get legal advice, which unfortunately doesn't come cheap. If I am totally out of order, then I would pay it, but I don't think I am. And surely as a "responsibile employer", she should have put this contract into place? and tied up all the loose ends? I have done some research and it seems to be that is is an "Agreement to Agree" and that it is unenforceable?

But it just seems to me that she can go around saying and putting in writing that I have deleted the files is unfair and completely untrue! I an truly gutted by this accusation!

Can she ask me to sign a confidentiallity agreement now after I have left?

Can she ask me to get the agreement drawn up at my cost?

**bluebottle** · 2nd April 2012, 22:34:PM

Re: Training claw back

Hi again, Discogirl.

Thank you for posting that up. My first comment is that your former employer is coming very close to committing the offence of Blackmail - and I don't mean the emotional kind! Non-payment of wages for work performed is not just a breach of contract, it is also an offence at law (Obtaining Services by Deception - Theft Act 1978).

As such, you cannot be forced into an agreement that is legally-unenforceable.

The allegation she has made is tantamount to accusing you of Criminal Damage. That is a very serious allegation for her to make. If you know it is untrue and unless she can provide conclusive evidence to corroborate her allegations, she should withdraw it immediately.

As far as confidentiality agreements go, contrary to common belief, these have limited effect, in practice, as they are invariably used to cover up wrongdoing, law-breaking and similar evils. Whether it is enforceable in law is another question.

It sounds to me that you have a former employer who thinks the law doesn't apply to them and they can do what they like. In your case, you have not signed an agreement or contract and I doubt very much that a court would look on your former employer's behaviour very favourably.

You can obtain free legal advice from your local Law Centre. Go to Law Centres

**teaboy2** · 2nd April 2012, 23:16:PM

Re: Training claw back

Just to add to what blue bottle said - If she passes your data to a debt collector when no lawful debt exists she will be in breach of the data protection act (is she registered as a data controller with the ICO?). Also making up false accusations and passing/sharing such accusations is also libellous too.

**charitynjw** · 2nd April 2012, 23:24:PM

Re: Training claw back

Confidentiality agreements are normally only used to protect things such as trade secrets.

Is this what you are being asked to sign, or do you mean a restrictive covenant?

If so, given your length of service for them, and probably your lack of seniority (an assumption on my part, I confess), imho it would be pretty worthless.

http://www.lindermyers.co.uk/are-res...eable_751.html

**discogirl78** · 3rd April 2012, 08:17:AM

Re: Training claw back

Thank you all for your responses!

Bluebottle - She has actually put her accusation of be deleting the information from the laptop in a letter sent to me on the 14 February 2012. "It would appear that you have wiped your laptop memory removing all traces of work which you have been paid for".

"With regards to the work on the laptop. name1, name2 and myself have all logged onto the laptop which you were using. None of us were able to find any files relating to the work that you had done since you started at [company name]. There were no emails in your in and out box, deleted items, or recycle box." This is catagorically untrue!! I did not and would not have done this.

How can I prove I didn't do it? I can't can I! Which is so frustrating!! People who know me, know that I wouldn't have done this!

Teaboy, yes she is registered with the ICO! What does this mean?

Charitynjw - she left me a voicemail message telling me to have an agreement drawn up by a solicitor which includes a confidentiality clause which stops me from discussing anything about the company or the owner. And you are right, I worked there for 4 months and I knew absolutely nothing, so why she wants me to do this, I have no idea!

I am angry, but frustrated that I can not prove my innocence! Common sense tells me she doesn't have a leg to stand on to be honest. But my worry is that a debt collector is going to come around and try to claim my car, tv etc, when I don't believe I owe her the money and she had no signed agreement that I would pay her. I have never been in the position before! Is this what could happen?

I have explained in writing why I don't believe I owe her the money. but she just sent a reminder invoice stating if I don't pay it in 4 weeks she is passing it to debt collector! What do I do next?

**charitynjw** · 3rd April 2012, 09:24:AM

Re: Training claw back

Originally posted by discogirl78 View Post

Thank you all for your responses!

Bluebottle - She has actually put her accusation of be deleting the information from the laptop in a letter sent to me on the 14 February 2012. "It would appear that you have wiped your laptop memory removing all traces of work which you have been paid for".

"With regards to the work on the laptop. name1, name2 and myself have all logged onto the laptop which you were using. None of us were able to find any files relating to the work that you had done since you started at [company name]. There were no emails in your in and out box, deleted items, or recycle box." This is catagorically untrue!! I did not and would not have done this.

How can I prove I didn't do it? I can't can I! Which is so frustrating!! People who know me, know that I wouldn't have done this!
You don't need to prove it, the other party does. As it has been admitted that many other people have access to the laptop, that would be a problem for them.

Teaboy, yes she is registered with the ICO! What does this mean?
It means that the employer can keep records of data about individuals, but only for the purposes stated on the ICO register, & these need to be processed fairly & lawfully.

Charitynjw - she left me a voicemail message telling me to have an agreement drawn up by a solicitor which includes a confidentiality clause which stops me from discussing anything about the company or the owner. And you are right, I worked there for 4 months and I knew absolutely nothing, so why she wants me to do this, I have no idea!
I find it hard to believe that any solicitor who knows anything about confidentiality clauses would include such a sweeping, generalised statement.
Imho, it wouldn't last 5 seconds under scrutiny.

I am angry, but frustrated that I can not prove my innocence! Common sense tells me she doesn't have a leg to stand on to be honest. But my worry is that a debt collector is going to come around and try to claim my car, tv etc, when I don't believe I owe her the money and she had no signed agreement that I would pay her. I have never been in the position before! Is this what could happen?
Debt collection agencies can't do this, only bailiffs can........& only if it goes to court & a judgment goes against you.
Even then, there are steps which you can take to avoid repossession of goods.
That scenario, if it ever came to it, is a looooong way down the line

I have explained in writing why I don't believe I owe her the money. but she just sent a reminder invoice stating if I don't pay it in 4 weeks she is passing it to debt collector! What do I do next?

The 'clawback', as far as I can see, is the only real issue of any merit.

**leclerc** · 3rd April 2012, 09:30:AM

Re: Training claw back

Has she put down in writing a formal demand for the money? If not then ignore all letters and forget about it until she does. With regards to wiping the memory, there are programs that can restore deleted files so that allegation is rubbish.

**teaboy2** · 3rd April 2012, 10:01:AM

Re: Training claw back

Originally posted by leclerc View Post

Has she put down in writing a formal demand for the money? If not then ignore all letters and forget about it until she does. With regards to wiping the memory, there are programs that can restore deleted files so that allegation is rubbish.

It depends what the employer did to delete said files and what program, some deletion programs actually write over the files upto 7 times some even upto 32 times. Even if its rewrote over 7 times its impossible to recover the data no matter what software program or special computer forensic program is used - I learnt that on NCIS this week lol.

**charitynjw** · 3rd April 2012, 10:36:AM

Re: Training claw back

The precedent for training clawback appears to be MBL UK Ltd v Quigley EATS/0061/08

http://www.bailii.org/uk/cases/UKEAT...1_08_0207.html

http://mail.twobirds.com/ve/ZZ950079...fM/VT=1/page=6

**charitynjw** · 3rd April 2012, 11:32:AM

Re: Training claw back

You have stated that they require £1790, which is approx 83% of the training costs (83% is based on the percentage relationship between 4 months work and the 2 year cut-off period).

If my math is holding up (it frequently doesn't!!), I calculate the training cost to be about £2150.

Is there any way you could serreptitiously find out if this is correct?

You also say that some of this was not really necessary - could you give a bit more detail, especially whether this extra training was of benefit or relevance to you?

**discogirl78** · 3rd April 2012, 12:10:PM

Re: Training claw back

Hello, yes, 83% of the total cost.

On the day I left, she sat down and told me I owed all this money, she provided me with copies of two of the invoices but not a copy of the First Aid Course. However, she provided with a copy of the Reminder Notice for the First Aid course with a handwritten figure on it of £246.00.

The First Aid course, I am not sure why I had to do this, because, whilst out on clients sites I would not be responsible for first aid. I wasn't asked if I wanted to be a first aider within the office, I just received an email telling me it was booked and checking it didn't clash with my holiday.

I know this doesn't come into it, but what she is saying I owe her works out to be 46% of my earnings whilst I worked for her. How is this proportionate when I know she made somewhere in the region of £5k profit (after wages, training, etc) in the four months I worked for her. She was charging me out at £80.00+ hourly rate after only being trained 2 weeks prior. I know I can't use this as an arguement against why I shouldn't pay it, but it's just not fair!

**charitynjw** · 3rd April 2012, 12:46:PM

Re: Training claw back

Check how much your first aid course costs - you may be able to do this online.

eg 3 Day First Aid at Work £145 per person for a 3-day course.
http://www.peersrooneytraining.co.uk/course-fees/

If you were not a nominated 'first-aider', it's difficult to see how any charge to you is justifiable.

Training claw back

Training claw back

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