NMW and training deductions,and travel time.

[1927]

My partner is a care worker and has just handed in her notice to move to another agency. As you are probably already aware care workers are applaingly paid and her current employers seem to be exploiting their staff, but there is one point I would like some advice on please.

 

Her contract states that she has to repay 100% of training costs if she leaves within 6 months, she ahs been there 4 months. However reading the NWM guidelines it appears that any deductions of this anture, although training is not specifically mentioned, are counted towards NMW and that in effect in her pay for the period in which the deduction is made her pay after deduction must not fall below NMW. So if she works 60hrs in the month at £6.30 an hour, then by my reckoning the total amount of decutions cannot exceed £24, as if it did her pay would drop below the £5.90. Am I correct in my assumption.

 

Other issues if anybody would like to comment are the fact that she has not been paid for a training day, or for the travel expenses to get there, when guidelines say she should be paid. Furthermore she has never been paid any travelling time between clients, guidelines say she should be, although she is paid 50p per hr in addition to her basic to cover travel. However if she has a 30minute call at 9am, then a 30min call at 10am and a 30mincall at 11am she is only paid for 1hr 30mins, no money for petrol, but guidleines state that in this sort of scenario where the time between calls is so short as to be of no use then she should be paid from 9am til 1130am as effectively she is in work the whole time.

[SarEl]

The training costs must be repaid if there is a written agreement to this effect - whilst the employer cannot impose a deduction for this on wages if it takes the wage below the NMW, it does not change the fact that the money is lawfully owed. I am not sure what the guidelines are that you are referring to, but guidelines are guidelines - what matters is contractual conditions, which may include adopted policies on such matters. If she has never taken up these matters previously with the employer, it does not strengthen a case that they owe her money, but that does not mean that, if you are talking contractual conditions, she should not raise these matters now.

[1927]

can I ask what experience or qualifications you have to make such a reply when it flies in the face of what the rules on NMW state. The fact that there is a clause in a contract does not mean that the clause is enforceable.

[SarEl]

can I ask what experience or qualifications you have to make such a reply when it flies in the face of what the rules on NMW state. The fact that there is a clause in a contract does not mean that the clause is enforceable.

 

Training agreements in relation to costs of training, assuming they are signed and agreed, are nothing to do with the NMW and are enforceable. As I stated, they cannot enforce a deduction which takes the wage below NMW, but that in no way means that the DEBT is not enforceable - provided it is within the parameters I have outlined. I made absolutely no mention of contractual clauses because they are not relevant - I did not say that a deduction from wages would be lawful, I said that the debt would be owed. Two entirely different things.

 

And my qualifications would be none of your business - who the h*ll do you think you are demanding anything and making assertions which have no basis in law - or on the question asked. If any lawful debt is not repaid by the final wage, then the law changes (the whole wage can be taken in the final event) and any money still outstanding must either be repaid - or you risk a small claim for it.

 

But since you asked so NICELY, 30 years an employment law barrister. What are your qualifications and experience for the INCORRECT contained here?

[1927]

Training agreements in relation to costs of training, assuming they are signed and agreed, are nothing to do with the NMW and are enforceable. As I stated, they cannot enforce a deduction which takes the wage below NMW, but that in no way means that the DEBT is not enforceable - provided it is within the parameters I have outlined. I made absolutely no mention of contractual clauses because they are not relevant - I did not say that a deduction from wages would be lawful, I said that the debt would be owed. Two entirely different things.

 

And my qualifications would be none of your business - who the h*ll do you think you are demanding anything and making assertions which have no basis in law - or on the question asked. If any lawful debt is not repaid by the final wage, then the law changes (the whole wage can be taken in the final event) and any money still outstanding must either be repaid - or you risk a small claim for it.

 

But since you asked so NICELY, 30 years an employment law barrister. What are your qualifications and experience for the INCORRECT contained here?

 

I only asked what your qualifications were as its not uncommon for people who know sweet FA to give advice when they shouldnt really be getting involved. AS I understand it then, from your reply, she may well have to repay the training cost, but they can't do this via a wage deduction and should I therefore assume that they would have to send us a bill?

 

Could you shed any light on the other issues I raised about non payment for training, travel etc which appear to be in contravention of regulations on NMW. I should have said regulations in my OP rather than guidelines as I guess that implies that they are not legally binding.

Edited November 17, 2010 by 1927

[SarEl]

I only asked what your qualifications were as its not uncommon for people who know sweet FA to give advice when they shouldnt really be getting involved.

 

You seem to have made some rather strange choices then, if you come on a public website and ask for legal advice, given the strong possibility that people may know "sweet FA", as you put it, and then want to know what qualifications they have only after they have given you advice you don't like. Your comments were not "asking". What you actually said was "can I ask what experience or qualifications you have to make such a reply when it flies in the face of what the rules on NMW state" - regulations which I have thoroughly read and fought cases on many times, so my advice certainly didn't fly in the face of anything, and your comments were couched in very offensive terms - as far as I am concerned.

 

I suggest that you pay for legal advice - then you know that the person speaking to you actually is who they say they are and you have every right to question their qualifications if you are paying for them. There are a lot of people on here - qualified or not - who are extremely competant to give advice; and if they aren't, well that goes with the turf of this being a public website.

 

Most people, knowing that they have phrased something badly and given offense, apologise - not justify their way out of it by going on to insult other posters who are doing their best to try and help others - even if their advice may be misguided.

[grrrrrr]

Another voice:

 

If you think that her working hours / conditions were such that you think she may have ended up effectively being paid below minimum wage, (unpaid training, unpaid required travel expenses, unreasonable scheduling etc.) then try and get it down on paper and make a calculation, you may be able to get CAB to help with this.

 

Just because there is a clause in a contract does not make it enforceable or lawful, and the contract as a whole (including NMW issues) would need to be looked at to judge whether the training costs reclaim would be enforceable. A "written agreement" does not an "enforceable clause" make - reality and law are much more complex than that.

 

Just because an employer may take you to a small claims court does not mean they will, or that they will win. Generally speaking, it would be appalling PR for a care agency paying very low wages to start taking its former staff to court, to say nothing of the staff / legal time and costs. Only the court fees would normally be allowed to be passed on by a successful small claims court, and so they would need to weigh up whether the additional & hidden costs were worth it. Chances are, they won't be.

 

In a civil court you would get the chance to show your calculations and make your case against the NMW regulations, and the unpaid work. If you want to support this defence, your partner can file a grievance (swiftly followed by Employment Tribunal Claim) for unlawfully withholding wages for training & essential travel time. The extra 50p per hour may (just) cover fuel costs, but can't cover travel time as well. A small claims court will look at the balance of probabilities on the whole situation, and not just on a single clause in a contract if there is a counter-claim for underpayment (supported by grievance / ET claim). The only risk with this strategy is that you may irritate the agency, and cause them extra costs dealing with the grievance / ET to make them want to chase the training costs.

 

However, if the agency simply deduct the 'cost' of the training from her last pay packet, then you have a clear case for making a claim against this.

 

While hanging on for 2 more months would have made this problem disappear, it is not such an open and shut case as first appears - if the training was a requirement for the job and not part of a course of recognised education, then every hour of it should have been paid at the NMW.

 

However, if your wife is going for another job and using the training from the first employer to secure a higher wage / better conditions etc., then the situation changes again and becomes far more complicated such that only personalised advice would be able to offer a useful opinion.

 

One option may be simply to write to the agency, acknowledging the training costs repayment clause, but also stating the unpaid training time etc., and offer just to call it quits. You can give them, say 14 days, to accept the offer of your partner not chasing the underpayments in return for the agency not chasing the training costs. Unless there are personality issues or other complicating factors, I think most reasonable people would accept that kind of offer to avoid the costs of chasing each other for relatively small amounts of money. (Obviously, this is based on the assumption that the training for a £6.30 phr / 60 hrs pm job were not too high to start with!).

[Bogoftoo]

I do not think it as clear cut as set out below, but would be pleased to be shown otherwise?If the liability to repay the training costs only arises if the employee leaves before an agreed time has elapsed (ie within the 6 months in the question), then it would seem that this is a contractual liability to the (now) ex-employee only because of their conduct (ie of leaving). As such it may be that the deduction would be allowed under Reg 33 (a). It is not "worker's expenditure" under 32(1)(a), and therefor Ref 33(a) can be considered.?

[honeybee13]

Hello and welcome to CAG.

 

This thread goes back over two years now, hopefully the OP resolved their problems. Do you have a question for us and I'll start a new thread for you?

 

My best, HB