First of all this is not discrimination because that only occurs f there is a difference in treatment due to things like gender, age, religion, race, etc. This is not why you are being asked to repay training costs.
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.
There are a couple of ways for the employer to try and recover these fees - by deducting them directly from the employee's wages or, if the employee has already left and been paid up fully - by taking them to court.
Any deductions from the employee's wages can only lawfully take place if there was a clear written agreement by the employee allowing the employer to do this, such as a contractual clause or a separate written agreement. In the absence of such an agreement the deduction will likely be unlawful and can be recovered.
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.
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