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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 56568
Experience:  Qualified Employment Solicitor
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I type a question and nothing happens, No, I'm self

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Hello
JA: Hi. How can I help?
Customer: I type a question and nothing happens
JA: Was this discussed with a manager or HR? Or with a lawyer?
Customer: No
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: I'm self employed
JA: Anything else you want the lawyer to know before I connect you?
Customer: No

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

What is your specific query please?

Customer: replied 8 days ago.
A self employed hairstylist (y) was trained in hair extension fitting in 2015 by (X) to cover for her busy times, and signed a contract which said (y) would have to pay for the training if she stopped working in the salon within a "reasonable " time.(Y) worked in the salon up to 4 days a week for 4 years after the training, covered numerous holidays and two Maternity leaves (2016 and 2018) for (X)In April 2019 X tried to get Y to sign a contract of Employment, this said Y would have to pay for the 2015 training if she left before 2021... She refused and stopped doing any work in the salon.X is now sending letters demanding payment of the Training Cost quoting the 2015 clause.(A) Does Y need to pay for the training and
(B) can a salon owner ask a self employed person to sign a Contract stating how many days holiday they can take, demanding a uniform is worn, etc. and restricting where the self employed stylist can work in the future.
Customer: replied 8 days ago.
Do you need further information ?

Please can you clarify, 'up to 4 days a week'? Did she work 4 days a week or less?

Customer: replied 8 days ago.
Iinitialy it was one day and then up to 4, it was 3 in April 2019 always self employed

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience. It is not uncommon for employers to spend money on training their workers, only to see them leave shortly afterwards and use the knowledge and skills from that training in another job. In order to ensure that the employer can provide an employee with training and that the employee does not take advantage of this by leaving soon afterwards, it is possible to have a repayment provision in their contract of employment. Under such a clause the training costs are deemed to amount to a loan to the employee, which becomes repayable if they leave their employment within a certain period of time after the training completes.

Whilst it is legal to have such clauses in place, employers must be cautious to ensure that the amount of costs they are trying to recover is a genuine pre-estimate of the damages which they have suffered as a result of the employee leaving early. In the event that it is not, such clauses could be considered a penalty against the employee, which would make them legally unenforceable. Therefore, if the employer has derived some benefit from the employee undertaking the training course during the fixed repayment period (e.g. where an employer has been able to charge customers more for an employee’s services by virtue of that training or qualification) then the amounts which may be recovered from the employee should be reduced to reflect that.

The contract should also ideally contain a sliding scale of repayment whereby the repayment amount reduces according to the length of time the employee remains with the employer after the training has been completed. Just as an example, 100% of the fees to be repaid if the employee leaves within 0-12 months after the training has finished, 50% if they leave 12-24 months after, 25% if they leave 24 - 36 months after. This is not a legal requirement but can make the clause more reasonable and easier to enforce.

In your case the time for repayment was cited as being within a ‘reasonable time’. No one knows exactly what that is but it is highly unlikely that after 4 years the clause would still be valid, especially as staying to work for 4 years after training is unlikely to be classified as an unreasonable short time. Together with the fact that it was just an arbitrary period of validity, it would make this a rather difficult clause to enforce now.

If the matter goes to court, it would be for the employer to show that the repayment clause was fair and that the costs they are trying to recover are reasonable in the circumstances or they are just extravagant and as such – non-recoverable. In the end only a court can make a decision by examining the finer details of the situation but as mentioned, it will be difficult for them to argue successfully.

As to the contract, it can be offered to the stylist but they do not have to accept it. So they cannot be forced to change contracts in that way if they are not happy to accept these new terms.

Does this answer your query?

Customer: replied 8 days ago.
Thank you, ***** ***** query, the salon owner is refusing to give me my training accreditation in order to try to affect my insurance and stop me doing extensions anywhere else, can she do this, as I am self employed and need to earn a living
Customer: replied 8 days ago.
Sorry, all your advice refers to me being an employee. Is this advice still valid for me as a self employed stylist ? E,g Does the HMRC not frown on salon owners treating self employees as employees in regard to contracts etc

Yes it does, I just mention employee for ease of reference.

As to the accreditations, if they paid for them, then they will be legally entitled to them and will only disclose with their consent. However you can try and approach the training provider to see if they would release any certificates to you directly

Customer: replied 8 days ago.
Thank you again, sadly the salon owner did the training and there is no training company involved and also no payment made by her. You didn't reaping to the HMRC point
Customer: replied 8 days ago.
Reply I meant

HMRC are inly interested in the tax part, so if an employer is avoiding taxes by treating someone as self employed when they are genuinely an employee that is when they would get involved

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 8 days ago.
Thank you again and bye

All the best