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Employment myths

3.07.2015

If an employee resigns within a certain period of receiving training, we can deduct training fees from their final salary payment

The starting point is that it is unlawful to make deductions unless authorised by statute, the employment contract or the employee has given prior written consent. 

This means there must be a clause in the employment contract allowing repayment of fees in the event that the employee leaves within a certain period of the training.  Such a clause will need to be carefully drafted, if it is too onerous, there is a risk that it will be deemed to be an unenforceable penalty clause.  The safest option is to set out a sliding scale so that the proportion of the fees to be repaid is reduced depending on how long ago the training took place.

In the absence of an express clause, the employee will need to confirm agreement to the deduction in writing, which at that stage might be difficult to secure.

Leavers are entitled to a reference

There is no general right to a reference, but once an employer has agreed to provide one it owes the employee a duty to take reasonable care to ensure the information is accurate, fair and true and not misleading. 

The referee will also owe a duty to the new employer, who will be relying on its knowledge of the employee. 

For these reasons, it is common for a reference to contain only a factual statement confirming that the individual was employed together with a disclaimer.

An employee whose fixed term contract has come to an end cannot claim unfair dismissal

The ending of a fixed term contract will amount to a ‘dismissal’.  This means that if the employee has at least two years’ service, she will have the right not to be unfairly dismissed and the employer will need to follow a fair procedure before the contract ends.  Usually this means writing to the employee and identifying the reason that the contract is due to expire, a meeting and allowing them to appeal the decision.

Employees who have been continuously employed for four years on a series of fixed-term contracts are deemed to be permanent employees unless the continued use of a fixed-term contract can be justified. 

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