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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10399
Experience:  I have been practising for 30 years.
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My current employers are trying to charge me 10,000 training

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My current employers are trying to charge me 10,000 training fees and stop me joining a company for 9 months in the veterinary decision based on a non covenant. I don't have the funds available for a solicitor to appointment to write a letter to reply to theirs but i believe the contract is without merit and my new company think the same. Do i have to respond to their letter? if so can i draft one myself? I've been here for just under two years and the new company is a fantastic opportunity with only 2-3 crossover peripheral brands. My new company would be happy to say i would not sell against this small range for 9 months but like me they don't think the training as it is in house and group training that all sales staff have constitutes for any costs to be reimbursed. Can they attempt to take this from my wages or is this illegal?

Is the employer trying to change your contract or is this already in your contract.

Can we have the wording of any clause in the contract?

With regard to the training fees, is it in your contract or were you made aware that if you left the employer within a period of time, you would have to repay the training fees?

If you could let us have as much detail as possible it would really help.

Customer: replied 1 year ago.
Hi , i have attached a link with the contracts and letter sent to me from my current employers solicitor. We only have two or three competitor products and my employer (New) has said he would be happy to include clauses to ensure i would not sell against the products in question. Also the training is just standard in house training as part of any job. Please see the link below. two or three people have left lately and they have gone to competitors. they have lost 28 members of staff just this year and this stuff seems to happen all thee time which is why they have a bad rep in the industry. See link below to safley download files.

It is likely that the £10,000 training fee repayment is going to a Unfair Term and hence would be unenforceable. In effect, means that people wouldn’t be able to leave in the first 2 years of their own free will because of this huge amount of money which presumably you didn’t have any choice in signing. There is case law Cleeve Link v Bryla from 2013 as to when such a clause may be enforceable. The key question is whether the purpose of the clause was to determine the employee from leaving or whether it represented a genuine pre-estimate of loss. The way it’s worded, with such a nice rounded figure and such a large figure and presumably, as they’ve had some benefit from you being there, it seems unlikely they could enforce that.

Regarding the restriction, it’s interesting that at the bottom of the page it says that consent to work for another company will not be unreasonably withheld. Hence, if you get a letter from your new employer that for the first 9 months they will not ask you to work in that field, then if the old employer will not give you consent, they are unreasonably withholding it.

Even so, as the nine-month restriction will stop you working in effect worldwide, for almost one year is unlikely to be enforceable. If it were 3 months, it would be enforceable. 6 months perhaps. 9 months probably not. 12 months almost certainly not. The court view is that any restriction like this must be no more than is reasonable to protect the interest of the original employer.

The Employers lawyers have produced this interesting fact sheet!

However if they apply to court to recover the £10,000 back from you, you are going to have to defend it and if you go to work with the other company without consent, and they apply to court for an injunction to prevent it, you are going to have to do defend that action. I’ve already said that what they are saying and trying to rely on is probably going to be unenforceable but if they do issue proceedings, you are going to have to deal with them. It might be worthwhile asking your new employers if they would instruct their own lawyers to deal with any court application on your behalf because it is after all in their own interests .

Can I clarify anything for you?

Please don’t forget to rate the service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails.

Best wishes.

Customer: replied 1 year ago.
thank you for your response.
Does this mean I stay on the payroll at either place of work if a court upholds any time I will be not be working? I just need a letter drafting a reply and letter in reply now. And yes I have done extremely well for them and made them a great deal of money and have promised to keep working and selling. They have all said I'm a good guy but they have a habit in this industry of this behavior to which the best of my knowledge have all failed but i don't wish to be the first. Also two other people are leaving and they are not getting this treatment. This is there latest reponse below.Dear Mr Smith,
Thank you for your email this morning, indicating that you are not yet in a position to respond to our recent letter, in which we ask you to confirm your intentions relating to potential future employment with Dechra.
While I appreciate you getting in touch with me, the principal question which I put to you was a simple one, which, with respect, does not require you to take extensive legal advice in order to answer. The principal question was whether or not it is your intention to take up employment with Dechra. Presumably you do not require legal advice to answer that.
It may be that you wish to make additional points, and in relation to that require legal advice, and of course that would be proper, and will be considered, but in order that my client may assess its options, and take such action as it thinks necessary, we simply wish you to confirm whether you are or are not intending to take up employment with Dechra.
Could you confirm that by return, and then of course, we can review any legal points that you wish to make as and when you make them.
Yours sincerely
Customer: replied 1 year ago.
oh also can they take my pay?

Once you have left, you have left and if the court upheld their application for an injunction to stop you working for nine months, then you would be faced with finding a job somewhere else for that period.

If they try to take your pay, it is unlawful deduction from earnings and you can refer the matter to HMRC because they deal with such claims. You could also deal with it through the Employment Tribunal all the Small Claim Court but HMRC probably have a greater fear factor.

You might want to reply to the letter with something along the lines of “I do intend to take up employment with DECHRA, but they have confirmed that I will not be selling competing products and therefore, I trust that you will not unreasonably withhold consent in accordance with clause headed Restrictive Covenants in the contract of employment.”

F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
thank you very much! have a great evening I highly recommend your advise and would use this service again