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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47355
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am a CAD engineer contracting, working for a design engineering

Resolved Question:

I am a CAD engineer contracting, working for a design engineering consantancy sub contracted out to a automotive company to work on multiple projects.
I have signed a contract saying I will work a minimum of 40 hours a week. I was also sent on a course where I signed another document saying if I leave within 3 years I will not only won't be able to use my skills but will have to pay the course back.
Since working here my average working hours per week is under 40 hours and I have been told by my line manager that I must limit my hours to 37 unless told otherwise.
Is my employer breaking his contract and if so do I have to still pay the course back?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?

Customer:

Nearly 6 months

Customer:

My contract is until the end of the calender year

Ben Jones :

OK thank you, ***** ***** it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you

Customer:

ok thanks Ben

I'm Ryan by the way very rude not to introduce myself

Customer:

I keep getting leave you rating but I haven't recieved an answer yet

Ben Jones :

Hi Ryan, thanks for your patience. Apologies for any emails received, they are automatically sent by the system and appreciate they may be annoying.

Going back to your question, if you had a specific clause in it which guaranteed you a minimum amount of hours a week, then assuming there were no conditions attached to that which could for example reduce this or not guarantee it, the employer would be expected to adhere to it. If they fail to do so they could indeed be acting in breach of contract. In that case, assuming that the breach is serious enough, you could be expected to argue that the contract has become void and subsequently all other terms within it are void too. This would also include the repayment clause, assuming there is nothing that states it can be treated as a clause that can be severed even in the event of a breach of the contract. Also you should not do anything which suggests you had accepted the new terms as that could mean that you had agreed to the changes and affirmed the contract, meaning you cannot rely on the argument that they have breached it. So in effect you would have to ensure you refuse to accept the changes and treat the contract as at an end with immediate effect, rather than accepting to work the reduced hours just because you will remain in a job.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Yes, but because I signed two different documents one regarding the contract and one regarding the course would this mean they are connected or seperated entities?

Customer:

I have read the 2 documents and I can'r see a direct link between them

Customer:

can't*

Customer:

The course related document only states if the employer terminates the contract then I don't need to pay the course back

Customer:

So has the contract been breached also? Within it it states 40 hours per normal week, than states a normal week is 5 business days

Customer:

that is what I based my less than 40 hour week hours upon (5 day working weeks only, then worked out the mean average)

Ben Jones :

Well taking into account all hours you have been working, whether just over 5 days a week or more, have you actually still been doing less than 40 every week?

Customer:

I only work 5 day weeks, unless I have choosen to take time off or bank holidays. I have worked under 40 hours a week all but for 4 to 6 weeks of my six month contract where I worked between 40 to 43.

Customer:

The mean average for hours worked is 38/39 per week and I have been now told to work 37.

Ben Jones :

There is a risk that the two documents could be considered separate contracts but at the same time there is a link because you were provided with the training to do the work in question so both agreements could still be seen as part of your general employment contract with the company. So even a breach of the employer’s duties to give you a minimum number of hours could be seen as a general breach of the employment contract, which could contain the agreement for the training repayment and can make the whole contract void.

Ben Jones :

But only a court can decide that and it would depend on the employer actually trying to enforce this clause and taking you to court in the first place

Customer:

I see, so though the documents don't directly reference one another the contract detailing hours, pay, etc could over rule the conditions I signed for the course because he breaking his side of the agreement?

What is the chances if this went to court I would be successful? A rought ball park idea I won't hold you to it. Ideally I don't want to go to court and negotiate something. Are you about to look over the documents quickly?

Ben Jones :

well it's not a matter of one overruling the other but to have both working alongside each other under one 'general' contract of employment. The issue with discussing your chances at court are that no one can predict these, I don't have enough information to make a judgement on that so you would need to see someone in person to conduct a case analysis to advise you of that. As this is just a Q&A site all we can do is discuss your legal position and options, not actually conduct a detailed analysis and provide you with chances of success

Customer:

So WHat would you recommend?

Ben Jones :

well what would you like to achieve? Would you actually wish to stay there and work the reduced hours?

Customer:

I would like to leave.

Customer:

Because he can't increase my hours

Ben Jones :

if you want to leave then you can do so at any time but as you are aware the risk is if they try and pursue you for the training costs. There is no guarantee they would do so, they could be threatening about it they could ask you to pay and say whatever they ant but you cannot be forced to do so and unless they go to court and win. As mentioned they may not go as far as doing that so you would not know until it happens

Customer:

Ok thank you very much. I think if I do leave I will discuss paying in installments because they want to be paid in full within 30 days. I don't want to go to court I want to leave on the best terms possible.

Ben Jones :

I understand, no one wants that and it could easily be resolved if you both come to some sort of an agreement - they may not want to go to court either, after all it will just take their time and money so they could easily be agreeable to some sort of arrangement of repayments in installments

Customer:

Ok, I think without going into any more detail that is all you help me. Thanks for your time and help

Customer:

Unless you can think if there is anything I may need to consider?

Ben Jones :

I think we have covered the most important bits to be honest, as mentioned there is a risk this may go further but the best way is to try and negotiate a mutually acceotable resolution with the employer which both of you would be happy with so you know where you stand

Customer:

Thanks for time

Customer:

I will now finally rate you

Customer:

Bye and thanks again

Ben Jones :

you are welcome, all the best

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