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Original poster

Urgent advice - can anyone help?

69 replies

FlipFlapBat · 12/01/2019 15:36

I’ve been working at my company for 9 years and have to give 6 months notice which I am planning to give Monday.

I finished a course 19 months ago and have to pay back the fee if I leave within 24 months. Including my notice period I will leave 25 months after it.

While I have to give 6 months notice my employer only has to give me 2 weeks notice.

When I hand in my notice can they say fine don’t work the 6 months, we want you to go in 2 weeks thus forcing me to payback the £10k course fee?

OP posts:
flowery · 13/01/2019 09:08

Plus obviously the fact that legal requirements are that regardless of contractual terms, your employer would need a valid reason and fair process to dismiss you anyway.

daisychain01 · 13/01/2019 09:11

maybe I'm not getting something here... isn't it in your best interests to have the 6 months notice contractually because it means by the time you leave you will have satisfied their obligation to have worked the right amount of time so you don't have to pay back the course fee? My point was if you hand your notice in first, they can't turn round and sack you. Isn't that all you need to worry about?

daisychain01 · 13/01/2019 09:15

Their conditions of employment are very much in their favour not yours but if you're getting out (and can manage to work it so they can't claw back the course fee) I'd say it's a lucky escape.

Benefit of hindsight always check the Ts and Cs of employment before you join and if there are aspects you don't find fair or reasonable you have to decide if they're show stoppers or not.

daisychain01 · 13/01/2019 09:19

ie they can't turn round and sack you in order to manipulate the shorter notice period in their favour and to get their course fees back which is what I think your concern was. And yes, absolutely the statutory minimum is always the dominant one, it's the law!

daisychain01 · 13/01/2019 09:21

As I've said before on here, I'd never work for an organisation that imposes a long notice period on the employee but gives themselves the opportunity to dispense with someone's services quicker. That's an unhealthy balance of power.

dancingdirty · 13/01/2019 09:23

I would make sure if the wording of your training agreement. Ours is calculated from the date of resignation not actual leaving date

3luckystars · 13/01/2019 09:29

I would wait the 6 months, finish in a nice way, and would not pay back anything.

Its only maternity cover, unless the new job is extremely rare and this is a chance in a lifetime, then i would avoid the stress of this right now.

RandomMess · 13/01/2019 09:39

Once anyone has completed 2 years service they cannot just be given notice anyway...

They either need to be made redundant, or go through some work performance issue or gross misconduct.

Alarae · 13/01/2019 11:09

I'm concerned that the clause itself is not enforceable in the first place.

Repayment clauses cannot be punitive, and must include an actual 'pre-estimate' of loss, not just a random figure. If your company got the course for free, what loss have they suffered? The only claim I could see they could validly make would be for any wages they paid to you if you had time off from work to attend the course.

These cases were brought to my attention in another study clause dispute, which I think has more relevant to your case:

(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])

flowery · 13/01/2019 12:27

”If your company got the course for free, what loss have they suffered?”

I completely missed that in the OP’s post. Is it that your company would have to repay someone else OP? Who actually funded it?

Original poster
FlipFlapBat · 13/01/2019 12:47

Thank you. I want out for a whole variety of reasons so the maternity cover job is definitely not a dream job or career move, it’s an escape. I’ve put up with a lot but I’ve had enough, it’s a very bullying environment.

The company providing the training offered it for free. I was paid for the time to attend and gave some of my time too.

I will double check but think the term is if I leave not if I resign. Nobody else is on a 6 month notice period even people the same level as me.

My main concern was I would hand in my notice and they would say fine go in two weeks; I know they would have no intention of paying me for 6 months at that point and would charge me the £10k (they never paid). It sounds as if that is not the case though.

OP posts:
Original poster
FlipFlapBat · 13/01/2019 12:50

Thank you everyone for the advice this has been very helpful. I know they rarely pay people’s final month’s salary in full and make deductions but nobody has chased them before.

OP posts:
Original poster
FlipFlapBat · 13/01/2019 13:05

I’ve tried to read that case law and all I can say is you lot are very smart as it seems super complicated to me!

The clause is meant to be a penalty, it doesn’t reduce over time, my company would financially benefit significantly. In the terms is does say I must be notified in writing of the potential repayable cost before accepting the training which I never received - I was only told the £10k afterwards.

OP posts:
RandomMess · 13/01/2019 13:25

They would fail big time if they took you to court!!!

I'm sure flowery and the other HR legal beagles on here would all say the same.

They haven't complied with their own terms, it didn't cost them £10k, they can't give you 2 weeks notice. There only option would be to falsify a reason to dismiss you for gross misconduct! You alone have a different notice period...

Are you a member of a union? I would join today before you hand your notice in. Ensure you book all your leave for the last weeks when your 6 months are up, again before handing your notice in.

They seriously think they are above the law it would appear...

User1011 · 13/01/2019 17:12

So, you think they can send you on a course that no-one has paid for, then sack you and make you pay them back £10,000?

Imagine that!

daisychain01 · 13/01/2019 17:52

They sound like a cowboy outfit if every I saw one. You're definitely better off out of there.

Good luck tomorrow.

GenericHamster · 16/01/2019 14:13

How did you get on OP? Sorry for bringing up a nearly zombie thread but I'm curious.

ChikiTIKI · 18/01/2019 20:42

Me too @FlipFlapBat hope you're ok!

Original poster
FlipFlapBat · 19/01/2019 11:37

They refused to accept my notice and wish to discuss next time all senior management are in. I'm a bit stuck.

The repayment clause isn't turning out to be the issue (as of yet) as they are trying to prevent me from leaving at all.

At this point I need to get some legal advise on the specifics of my contract as there are three clauses in contention but I don't want to post them as they would potentially be very outing.

It's very stressful!

OP posts:
RandomMess · 19/01/2019 11:41

They can't refuse your resignation, email them saying as per conversation of x date or (whatever) here is a copy of my resignation. My contract says 6 months notice so my leaving date is y.

@flowery I'm sure you can advise far better than me though!

FogCutter · 19/01/2019 11:46

They cannot refuse a resignation. You need to put it in writing, date it and email it to them so there's a paper trail. Ensure you give then the correct notice.

Original poster
FlipFlapBat · 19/01/2019 12:09

They want a longer notice period which is what the discussion is about. I want to be fair but do feel it is long enough already.

OP posts:
Ragevibration · 19/01/2019 12:15

What are their reasons for wanting a longer notice period? I can't think of a single role where it would take more than 6 months to find a suitable replacement.

twiglet · 19/01/2019 12:16

They can't refuse a resignation and can't extend a notification period without your agreement.
They may try to scare you with clauses etc however regardless of what clauses say courts can rule them to be unclear/unfair and therefore unenforceable.

Its wise to seek legal advice and also to clearly state this in your meeting with them they are less likely to force things if they know you have already sought legal advice!

flowery · 19/01/2019 12:33

They want longer than 6 months?! Ridiculous. Just ignore. Reconfirm your resignation in writing including what your termination date will be. They can discuss with senior management as much as they like, as long as you give the required contractual notice it’s up to you to decide when you want to leave.