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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49862
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi there, I need some advice regarding my contract of employment.

Customer Question

Hi there, I need some advice regarding my contract of employment. I joined a new company just less than a month ago via a recruitment agency. The job is not what I expected and I am not enjoying it and considering leaving my new employer. However, I have noticed a clause in the terms and conditions of my contract which is causing me concern. ... It states that if you leave the company within the first 6 months of your joining date, then the company will recharge me with 50% of any agency fees that the company incurred. I have discreetly checked with our accounts dept on how the agency have been paid to introduce me to my new company, I am told that this is circa £10k, meaning that I would potentially need to pay them £5k to leave the company. Is this something that they can legally enforce ? As I don't have £5k to give them, it worries me that I might need to stay in a role that I don't like for the next 5 months .... Are there different options with me being in my first month of employment? Your advice would be really appreciated ... Regards, XXXXX XXXXX
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. can you tell me is this the first job you have been given by the agency.

JACUSTOMER-wv0hkmyk- : Yes it is..
Ben Jones :

OK thank you, please leave 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

Ben Jones : Many thanks for your patience. Whilst such clauses may be enforceable the employer will have to justify that the fees they are seeking wee genuinely incurred, rather than just a figure they have chosen and that you we actually aware of the amount you were likely to have to repay before you decided to join them. So if you had no idea of the fees you are likely to pay and they then requested that you paid some high fees that could be considered unreasonable in the circumstances you could argue that the actual position was not made clear at the outset and to recover the full fees would be unreasonable. This could especially be the case if these fees were higher than what one would reasonably expect to pay an agency to source someone in your position. Another consideration is the reasons you had to leave the position. For example, if you were forced to leave due to a breach of contract by the employer, you could argue that you were constructively dismissed. This basically means that the contract of employment has become void due to the employer's initial breach and all of its terms would also be void, including the fee repayment clause. However for that to happen you need to show that there was some serious breach by the employer, for example they mis described the job to such an extent that it has become impossible for you to carry on in it , or other similar breaches like bullying, serious unfair treatment and so on - these could all amount to constructive dismissal. In the end, it would also depend on whether the employer is willing to pursue this any further - you may find that many employers only use such clauses to try and prevent employees leaving but may be reluctant to actually start legal proceedings, but obviously only time will tell. Nevertheless if you can pinpoint a breach by them and use that as a reason to claim constructive dismissal, you could try and leave under that pretence and hope they accept it and do not pursue this any further. Hope this clarifies?
Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

JACUSTOMER-wv0hkmyk- : Hi Ben,
JACUSTOMER-wv0hkmyk- : hi Ben, many thanks for the recent reply to my initial question. ... The agency fees could prove to be in line with the industry "norm" as this sector seems to command a fee of circa 10 / 12 / 15% of the OTE. My package is circa £80k pa, so they could argue that this is "reasonable". Regarding being made aware in advance, it was noted on the original contract, albeit I was never verbally informed of it or the potential amount that I would need to repay. Equally, the new company have not really inducted me properly and I feel as though I have been left on my own to fend for myself really. I have held similar positions in other organisations, so they could be assuming that they can just leave me "to get on with it". I am not enjoying it all and really need to know the "odds" of me departing without major reprisals or costs. Regards, john fickling
JACUSTOMER-wv0hkmyk- : My start date was the 14th of April 2014
Ben Jones :

Hello again, the odds of predicting whether you can get away with it are like the odds of predicting next year’s Grand National winner – quite uncertain. It is impossible to say that there is a good chance they won’t pursue this and allow you to leave without further repercussions – no one apart from the company knows the answer to that because they are the ones making the decisions. One company could throw the legal book at you and pursue you as far as they can, another could just threaten you but not take it any further, the next one could do absolutely nothing and let you go off to your next job. It could be any of these and it is impossible to predict which camp your employer would fall into – it is very subjective as you can imagine and it would really depend on the people calling the shots.

I would not say that the breached are so serious here that you can claim constructive dismissal. I understand that failure to provide induction may not be ideal but is it serious enough for you to say that this is just the last straw and you simply cannot continue working there as a result – probably not, even if that is how you felt.

Therefore you are relying on the probability of the company pursuing this in the first place (impossible to predict as discussed above), and whether they can show the court that the clause was properly incorporated into the contract, that you were aware of it and the repercussions of breaching it and that the costs incurred were reasonable and that after trying to minimise them they have still incurred such losses.

There are a few ‘ifs’ as you can see and something that cannot be avoided at this stage and this is how these matters work out – there is always a risk in breaching the clause and leaving as much as there is a risk in the employer pursuing you for the fees. In the end only a judge can decide who is correct and who should pay and what, and another difficulty is that they may use their own personal judgement about this so the outcome will also likely differ depending on who hears the case.

Hope this clarifies your position?

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks