Where there is a genuine entitlement to summarily dismiss, an employee cannot rely on the...
Maternity 'pause clause' for training costs was discriminatory
Walworth v Scrivens Ltd
An employee who went on maternity leave was discriminated against and unfairly dismissed after her employer paused her training agreement to recoup expensive training costs.
A year after she started working for the optician Scrivens, Ms Walworth signed a training agreement so she could qualify as a Dispensing Optician. The agreement specified that the cost of her training would be met by her employer but if she left her employment after 15 December 2014 but before 14 December 2016 she would be due to repay £11,000 in terms of her training costs to Scrivens, and if she left after 15 December 2016 but before 14 December 2017 then she would be due to repay £5,500 in terms of her training costs. At the end of August 2015 she told Scrivens that she was pregnant with the due date being April 2016.
In January 2016, before her maternity leave began, Scrivens’ HR department advised her that she had only completed 16 months of her three-year study repayment period and that the countdown of this period would be paused whilst on maternity leave and restart upon her return. There were no provisions to this effect in the training agreement which Ms Walworth had signed.
In February 2016 Ms Walworth wrote to Scrivens to complain that she had been subjected to pregnancy and maternity discrimination, although she didn’t complain about the pause provision in that letter. She initiated a grievance, but this wasn’t upheld. She went on maternity leave in April 2016.
In January 2017 Ms Walworth called HR to discuss her return to work. Various options were discussed as she was struggling to arrange appropriate childcare. In February she was reminded by HR that if she did not return to work she would have to repay £11,000. A month later Ms Walworth resigned, the reason given being that she believed her contract had been ‘fundamentally broken’ and that she’d been discriminated against because she became pregnant and took maternity leave. Scrivens withheld her accrued and outstanding holiday pay as a set-off against the £11,000 training repayment that it claimed that it was owed. Ms Walworth lodged tribunal claims for pregnancy and maternity discrimination, constructive dismissal, and unlawful deduction from wages.
All her claims were upheld.
- Discrimination: pausing her training repayment period was unfavourable treatment because she had exercised her right to take maternity leave. It breached reg. 9 of the Maternity & Parental Leave Regulations 1999 in that it required her (in comparison with someone who did not take maternity leave) to undertake additional service before being free of her obligation to repay her training fee.
- Constructive dismissal: implementing such a pause period amounted to a breach of the implied term of mutual trust and confidence which is always repudiatory. The employer had misrepresented the contractual position and the tribunal also concluded that discriminatory behaviour will always be a breach of the implied term of trust and confidence. Ms Walworth resigned because of this breach and had not delayed too long before doing so. Despite the long gap between being told that there would be a pause and her resigning, she said that it was only much later that she realised this ‘pause’ was not in her contract.
- Unlawful deduction from wages: she was entitled to be paid holiday on termination and had not been so paid.
- Employer’s counterclaim for breach of contract the tribunal asked for further submissions on whether the employer can reclaim £5,500 of the training fee (rather than the amount outstanding when the contract was ‘paused’.
She was awarded over £11,000 in compensation
Link to judgment: http://www.bailii.org/uk/cases/UKET/2018/1301685_2017.pdf
This is only a first instance tribunal decision and therefore not binding. However, it is an important reminder in relation to training contract repayment periods. This should not be confused with training periods where there is an obligation to spend a specific period training, for instance as a lawyer or doctor, before a formal qualification can be obtained. In those circumstances, an employee would still have to complete the actual time required on their return.