Posted By Alan Harsley
This is only my opinion and not based on any learned documents. I personally would not base my defense on the Management Regulations stating the need for competent advice as competence does not necessarily warrant qualifications. Competence can be confirmed with knowledge and experience. I would check your job description. Most JD's of this kind of post state the need to keep abreast of current legislation etc. etc. Clearly, continuing further education and training is a method of meeting this criteria.
Alan.

Posted By Joe McNicholas
Andy,

I think employment law in general would apply to this particular situation more than Health & Safety Law. Whilst I do not believe that you would be able to claim any protection with the HSW Act, you may well have a claim under more specific employment regulations.

Clawbacks are put into place to stop you obtaining a qualification via an employer and then leaving to join another company, in this instance you have not obtained the qualification! It may be that if it did go to court you may have to share some of the cost of the course but it should be by no means the full cost.

Your argument would be that although you have attended the course over a period of time, the company has benefited from what you have learned and therefore recouped some of the cost.

I would say definitely do not give in to the full cost - They are wrong.

Good luck

Joe McNicholas

Posted By Arran Linton - Smith MIOSH RSP
I am aware that under the HASAWA you cannot use section 2 - 8 for pursuing a Civil claim.

You may be able to use the Section 9 of the HASAWA or the ACOP description of Regulation 7 of the MHASAWR 1999, as a minor argument, but if your employer were to pursue the claw back clause and take the matter to a small claims court, I believe the case in court, will be mainly focused around the contract.

In terms of competence, remember the Sainsburys Case.

From a tactical point of view, I believe the employer is in a lose, lose situation. If he wins in court, the (potential) adverse publicity could lose him work. If he loses in court he is still (potential) exposed to adverse publicity. Remember that less than 2% of all litigation ends in court. From your point of view, County Court Action is not something that you should undertake lightly, especially as it can take up to two years to settle the matter and it could affect you credit rating.

Historically, in the construction industry, some claw back training clauses have been around for a while, but they are notorious for not working.

For enlightened employers, training is a great motivator and the payback is immediate, however once someone is trained, then you do need to pay the market rate of pay in order to retain their services, or someone else will. Unfortunately there are a lot of employers who still try and use the claw-back clause to retain staff at less then their market rate, thus a great de-motivator.

For NEBOSH Diploma Students, this is a good Law, mock exam, test question and it would be nice if a current student does research this.

Posted By Arran Linton - Smith
Lee,

I have copied this from the IOSH news centre archives. This is the only upto date case I know of, which challanged the issue of competence for safety advisors.

Arran

Friday - January 29, 1999
Choose your safety adviser wisely, warns IOSH

Courts are taking an increasingly dim view of employers who pay lip service to health and safety legislation by appointing health and safety advisers with minimal qualifications and experience, warns the Institution of Occupational Safety and Health (IOSH), Europe's leading body representing safety and health professionals.

The warning comes after supermarket giant J Sainsbury plc was fined a record £425,000 for offences relating to the death of a worker who was crushed by a forklift truck at a distribution depot in Basingstoke.

The court found Sainsbury's guilty of several breaches of the Health and Safety at Work etc. Act and related regulations, including the failure to appoint a health and safety adviser who was competent to advise on the risks from the operation of forklift trucks. As IOSH Chief Executive John Barrell explains:

'The Management of Health and Safety at Work Regulations 1992 states that health and safety advisers must have 'sufficient training and experience or knowledge and other qualities' to carry out their duties. Clearly the court's view is that this wasn't the case at Sainsbury's Basingstoke depot.

'This was a unit which employed around 700 people and which was using 46 reach trucks at the time of the accident, but the person appointed possessed only a National Examination Board in Occupational Health and Safety (NEBOSH) Certificate - a qualification which provides an adequate base for people with only a part-time responsibility for health and safety.'

IOSH does not recognise the NEBOSH Certificate as sufficient qualification for people employed in a primary health and safety role, and no longer offers Associate membership of the Institution to those holding the Certificate. A new membership grade - Technician Safety Practitioner (TechSP) was introduced last year which places more emphasis on experience.

Even so, TechSP status is only intended for those who assist more highly qualified safety and health professionals or who deal with matters in low risk areas. As John Barrell explains:

'It is quite clear that this was a high risk area and that proper advice should have been available from a more senior practitioner, such as an IOSH Corporate Member with Registered Safety Practitioner status, whose experience and knowledge would have been relevant to this type of environment.'


- Ends -

Posted By Stuart Nagle
Andy.

I would suggest you have a strong case for avioding the claw back.

1) further to what has been siad above, the law under the HASAWAct 1974 clearly states that an employer shall provide information, instruction and training.

This is exemplified within the MHSAW Regs.

Quite clearly your employer recognised that as a TechSp you needed further training to achieve MIOSH and that the Tech Specialist grade (an assistant role as defined the by the leading professional Institution in the UK - IOSH) was insuffient for the needs of your role.

This is why, it could be argued that they entered into the agreement to have your further training undertaken, in accordance with both the above mentioned Act and Regs.

The agreement you entered into seem quite clear, and from what you stated it seems that you are now outside the agreement.

If you have not completed the task then the training agreement, unless it has a clause that is not mentioned here, is non-effective, as it seems to only consider completion.

If you have completed the course, only over a much longer time frame than envisaged, and are still within the 6 month period following completion, I would argue that the case that the orignal time frame for completion was much less and would normally have been passed.

In view of the value of your services overe this extended period, I would not belive that the employer would have 'reasonable' claim against you.

I would suggest that you seek the advise of a solicitor who specialises in employment (and if possible H&S law) and seek to have an out of court settlement. The threat here for your part is take your employer to either an industrial tribunal or the magistrates court in respect of his seeking to claw back what is, to all intents and purposes monies covered by both section 2 of the HSAWAct and the MHSAW Regs.

Ofcourse if anyone has a different view, lets here it !!

Stuart Nagle

Posted By Frank Neville Johnson
Ken

Check out the case of 'Rama v South West Trains'. Although Rama was a union safety rep, he was able to show progression was nessessary in his case for competency.

Frank