17 yrd old finished after 10 mths - lost £100's in training fee as part of wage

[Atlas01]

Hello all, I'm a long time lurker of this forum but have never felt the need to post as the advice given here is the same as i would give or better....... That's the platitudes done

 

Just to add some fluff to the issue and aid any reply as i do understand the technical side of issues i'm a full time union rep in Local Government employment.

 

This is why i'm both annoyed and slightly embarrassed to ask but if you don't know....................

 

My son's new girlfriend has been finished in July from a private nursery.

 

She was paid the sum total of £3.53hr (I never knew it was this low for the NMW) in addition her contract states as follows:

 

(** note ** we shall call her employing company "Dick Turpin Enterprises" which is also the name of the training company)

 

Contract excerpt from "Dick Turpin Enterprises for early years"

 

"You will be required to undertake training for an NVQ II qualification in childcare with "Dick Turpin Enterprises" Elite Assessment Centre. The training will commence after your first 3 month trial period has ended. You will be required to pay for this training currently at a rate of £80.00 per calendar month, which will be deducted from your salary each month. This deduction from your salary will cease on completion of your NVQ qualification.

 

 

--------------------------------------------------------

 

She tells me they now have some new people in post leading me to the assumption this is a con for cheap labour where they are fired off before the 12 months rule comes into force.

 

 

From my experience (looking after pampered public sector employees ) I don't see any straight forward angle for any type of unfair dismissal claim. She was finished virtually on the spot for "capability" issues which had not previously been brought to her attention. I didn't feel the need to check any further detail here because without access to ET it's somewhat mute.

 

 

===========

 

With my very limited experience in private sector issues my first though was is there any type of county court proceeding that could be brought under some form of breach of contract but i feel this would take a fairly solid argument that ties more into employment issues not BOC which may end in a ruling of "sorry, wrong court my friend"

 

After more deliberation I'd like to check the following idea

 

She is on the NMW, therefore as £80 a month has been taken from her wage for training provided by a company which appears to be a subsidiary of the employer (i still find it hard to believe any employee can be required to pay for their own training but i am LG employed) is there is an argument to say she has been paid less than the minimum wage by this deduction?

 

This gives me the angle of ET as she may thus qualify for "Dismissal for qualifying for the national minimum wage or seeking to enforce a right to it."

 

She was finished 23rd of july meaning any claim may need to be pretty quick without representations to her employer first (why do i always get these issues days before the deadline )

 

The training stopped the day she was finished so she has lost around £750 with no qualification (it was a 12 mth NVQ)

 

Over to you experts, my apologies if i've missed any relevant details

[callumsgran]

I'm no expert but there are as you say plenty here but at the least i would be chasing them for the training fees back!

[colin813]

Hi

 

Generally speaking compulsory courses that are undertaken in the 'normal running' of an organisation are usually paid for by the company, induction training for example.

 

However organisations are able to claim back from employees costs that they have incurred for professional and NVQ qualifications. For example, the level of qualification usually dictates the qualifying period for repayment. This should be clearly written into employee contacts, clearly stating what the employer can and can't claim back, or have employees read and sign a training agreement, so they know exactly where they stand.

 

It seems from your post the employer made it clear the employee will be responsible for her nvq training so the employer has done nothing wrong.

 

Capability is one of the 5 fair reasons used to dismiss an employee, Provided the employer has formed a genuine and reasonably held belief that the employee is not meeting reasonably required standard the employer can dismiss on capability.

 

Indeed there are morale issues but from the information in your post i do not see what your sons girlfriend can do, as she has less than 1 years service

Edited September 21, 2010 by colin813
notice of correction from djhutch :)

[papasmurf1cx]

Again I am no expert but it seems to me that this childcare enterprise needs a bit of free publicity. If it is an excuse for desperate people seeking training and employment and get neither then it seems to me that past and future victims need to be told. Press? MP? Local Chamber of Commerce? Does the company get some form of public subsidy? I am sure if you stir up the mix something will fall out.

[Atlas01]

not to offer comment but correction colin

 

"i do not see what your boyfriends daughter"

 

it's the son's girlfriend cheeky

[colin813]

sorry

[SarEl]

Very nicely argued Djhutch. My advice would be to bang in an ET1. It will take so many months to get a hearing (if it comes to that) that you will have time to refine the argument. Then start digging and digging. I will bet that you will find that the employer actually has a training agreement for this post with someone - to provide the job with training, and I will lay bets that the NVQ is probably paid for already as part of this deal. To be honest, I don't know whether the argument you have put (and any others you dream up) will fly. But I do like it and I think it has legal merit - which obvioulsy isn't the same thing as winning. But it may not come to that if you make a claim as the employer may settle. You can represent her in the claim.

 

You are a trades unionist, so you know the rules. This is a game of chicken - don't swerve when you see the whites of their eyes You also don't have to play by the rules, unlike lawyers. So yes - MP's, papers, training accreditation bodies - anyone you can think of.

 

And I assume you have already explained the most important thing - why she joins a union!!!!

[Atlas01]

Thanks for the pointers up to now, All i need is a foot in the ET door which appears to be a valid angle to lodge as i'd guess any employer would be advised to settle for less than £1k.

 

I should have known about the potential for the "other" company pulling grants to pay for the training through the learndirect and unionlearn agency's which i can use to check posibbly My main concern is time taken to pursue as it's something i do not have much of. I prefer clinical and quick tbh!

 

All i want is ET angle jcb in my back pocket instead of a tea spoon to undertake the aforementioned digging

 

I happen to enjoy pursing people of this type in a 1-1 face or face basis. If they do have links with the council I do have the ability to advise them of possible public negativity as i deal with politicians and press locally where i live in the next district

 

colin can you point me to the source of your counter argument of it being acceptable as i have a 50-50 response up to now.

 

thanks all

[colin813]

http://www.crystalpd.com/NVQ.html

 

To receive NVQ funding candidates must fulfil certain criteria such as being in a full-time role, being over 19 years of age and having been resident in the EU for at least 3 years with a permanent NI number. - Taken from the above site.

 

As your friend is only 17 she wouldnt quailfy for goverment funding.

Did she sign a training agreement? If she did then she will be bound by its terms

 

Its clear she didnt quailfy for goverment funding otherwise the employer wouldnt deduct her pay for the cost of training. Whats important is the fact they did deduct the money as long as she agreed and signed to say so. If she didnt sign one you could argue illegal deduction of wages

Edited September 22, 2010 by colin813

[Guest wino]

Have you tried googling 'Dick Turpin Enterprises Forum' and see if anything pops up?

There could be others out there who have been treated the same way as your sons girlfriend.

[SarEl]

I don't altogether disagree with Colin re: the training agreement argument, which is why I wasn't sure that your case would fly. But I think that your argument is still sound enough to bang in an ET1 (look on the bright side - whatever happens it will cost them money!). I would argue that a training agreement is just that - an agreement made mutually, which it normally would be. In this case it is a contractual requirement (so she had no option to refuse the training), and on that basis the deduction to pay for a course which the employer (or their subsiduary) provides and is a contractual requirement brings payment below NMW. The precedent on this would be how other deductions from wages (other than legally required deductions) are made - and an employer is not allowed to make deductions for other purposes which bring the wage below the NMW. This would include things like deductions for till shortages. I would argue that the same applies here. I can't think of a case where this type of thing has been brought - but my guess is that given the type of workforce and the wages involved, people couldn't even if they knew to try. I would just go for it. It doesn't take many hurs of legal work to run up £800+ - they would be stupid to take the risk in my opinion.

[colin813]

Was your sons girlfriend given the correct notice?

 

Many workers have clauses which allow them two weeks or two months notice before having to leave work. Was she paid her notice? Firing someone immediately can result in wrongful dismissal

Edited September 22, 2010 by colin813

[colin813]

Good point SarEl give them the option to repay the training fee or risk paying more in legal fees defending a claim .... Nice

[Atlas01]

Here's an update

 

I read through some useful if not long guidance on the NMW and it did not

appear to block the deduction for training and as it was contractually bound it aided the idea.

 

I then decided to ring the NMW helpline and explained the situation to the advisor (who for once appeared useful). He could not help on the ET side which i understand and I have enough to lodge if needed from the responses here but went on to add that after I have contacted her employer, If they refuse a reasonable request for resolution of the matter (pay her back). They would take up her complaint on her behalf with the company.

 

So i now am left with the option of contacting and asking for a full refund of training fee's at least (I've also noticed there is another breach as it states the £80 is taken after a 3 mth trail period and was actually taken after 1 month) and if they refuse/ignore lodging an ET1. Or letting the inland revenue act on her behalf.

 

Having the taxman as a grenade to throw is very tempting.

 

I'll be writing to them in the next few days. Any potential pitfalls would be appreciated.

 

As far as notice periods and other termination titbits I didn't get round to checking them yet

Edited September 22, 2010 by Atlas01
edit, missed last sentence and spello's

[papasmurf1cx]

would love to see your letter if poss......... it's turned out quite nicely.