Posted By CFT Nick Get legal advice from a specialist. The answer is yes and no and it depends greatly on the wording, what the time spent is, and what percentage of recovery they are wanting. Salary time with the amount of time you would have spent on the dip is fairly academic. I assume you are monthly paid with a proportion of holiday pay in the kitty? Good luck and seek out that specialist employment solicitor. CFT

Posted By mark limon There is nothing in the regs that says that you needed a diploma to carry out your role.Interesting one this,legally you might not owe them anything but you did agree to this condition,you now have your diploma and maybe Im assuming here but have you obtained a new job with it????. If I made an agreement I would honour it, Mark

Posted By PH There are really 2 parts to your question. Personally I do not think the training you have had would fall under Section 9, my understanding is that this applies to training, equipment etc. required by statutory provision. As to whether you should have to pay or not, I know of 2 cases where this has been an issue. In both cases the employees had signed an agreement, both left and refused to pay. The company sent out letters threatening legal action etc. but ultimately decided it wasn't worth pursuing due to the cost involved. I am also led to believe that they are often seen as unlawful (Unfair Contract Act?)depending on the conditions under which they were signed or the wording they contain. Either way, I think this is a decision only you can make. P

Posted By Adrian Watson Sorry Nick, The training is not covered by S9. If you signed an agreement to pay back the fees etc, then you are bound by contract to pay it back. Regards Adrian

Posted By Nick S Thanks for the advice. The issue has nothing to do with the ethics of whether I should honour my contract / agreement; it is a solely based on whether my employer is in breach of S9 of the Health and Safety at Work etc Act 1974 (HASAWA). If this is the case then the agreement that I signed would have been unlawful. Relying on S9 is not a very strong argument; I acknowledge this and I very probably will have to pay back some of the costs of the training, however my employer has a duty under Regulation 7 of Statutory Instrument 1999 No. 3242: Management of Health and Safety at Work Regulations 1999 (MHSWR), which states: '(1) Every employer shall, subject to paragraphs (6) and (7), appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997.' I was appointed to fulfill this requirement and I identified that I did not have the full range of competencies required to fulfill my role effectively and as a result my line manager agreed to send me on a training course. Regulation 7 of MHSWR also states: '(5) A person shall be regarded as competent for the purposes of paragraphs (1) and (8) where he has sufficient training and experience or knowledge and other qualities to enable him properly to assist in undertaking the measures referred to in paragraph (1).' In my opinion the NEBOSH Diploma provided me with the necessary training, which along with my knowledge and experience, left me fully competent to perform my role. It is for this reason that I believe that it may be possible to apply S9 of HASAWA to this scenario. Thanks, Nick

Posted By CFT Nick Forget section 9, An Employment law solicitor should be your next port of call! The initial consultation may well be free from charge. All the best CFT

Posted By FJ If you do a "search" on these forums you will see that this question, in essence, has come up before alot. It is quite common for employers to try to claw back this sort of training if you leave within, say, 3 years (often it is staggered depending on how soon after completing it you leave)- to try and recoup time seems harsh- are you not allowed time to research answers to queries etc at Work (what's the difference)- an interesting point is how it clashes with the Management Reg duty to have competent Safety advice- but I'm sure that comes up in Diploma-study!

Posted By Brigham Sorry to sound direct but you signed an agreement that you would pay the fees back, you weren't coerced. You took the funding not only to do your job better but to be more employable at a higher level later on down the line. Your excuse of using Regulation 9???? (where did you do your dip?) of HSWA doesn't wash, you should pay your dues and stop looking for excuses to get out of it.

Posted By Richie H This as has been discussed previously is common practice by employers - and to be honest - has to be! They need a return of investment for not just the cost of the course but time off work attending the course etc etc.... I hope the next Health and Safety Manager to replace you has a Diploma and doesnt require any further training because he will perhaps be on difficult ground following the employers experiences with this. Afterall, it is a contract you signed, both employer and employee in good faith..... you should honour that contract! Richie

Posted By Paul Duell These time bar agreements are pretty standard: My last employer paid for the training of loads of HGV drivers and they were all under similar agreements. I was lucky - they forgot to get me to agree to a time bar when I did my diploma. Having said that I ended up even luckier: The week after I completed my diploma - and just when I was wondering if my conscience would let me leave straight away - they made me redundant after 19 years. Ka-CHING! I'm now employed in the position I applied for on the day I was told I was being made redundant. Someone up there's looking after me.

Posted By Ron Hunter I can't support your arguments, but would suggest the repayment of salary & NI contributions is beyond the norm.Terms are usualy 2 - 3 years. I can only suggest you make an offer to pay the course fee element, perhaps in increments ( unless of course they decide to deduct it from your final salary!!!!). Perhaps your new employer offers some relocation expenses as part of your new contract which could soften this blow?

Posted By DRB Nick You entered into the agreement surrounding the study for the diploma freely and knowing the terms of that agreement. You can't unilaterally change it now just because it doesn't suit. The HSWA won't help. If the claw back time is excessive (in excess of 5 years perhaps) then the Unfair Contract Terms Act 1977 may assist and could, in certain circumstances, make the whole agreement void. Personally I think that you should take this in the chin and repay what you legitimately owe. Remember the next time another employee asks your employer for support on something like this they are likely to get turned down because of the approach you are taking!

Posted By Phillipe With respect Nick to your situation, you knowingly entered into an agreement with your employer. The deal by the sounds of it was they would pay for your course, you would continue to work for them for a specified period of time knowing if you left you would have to pay it or a portion of it back if you left before the period end. I do not see what your issue is here, whilst sympathetic regarding the NI and salary costs, you should pay back the money you owe end of story for the diploma. I have had a similar arrangement and paid a portion of the money my previous company shelled out for when I left following investment in training. If you weren't happy about this arrangement the perhaps you should not have signed it in the first place

Posted By Phillipe Nick To anyone who read your posting at the start of this thread, it more than intimates that you were looking for a way out of "coughing up" the cash and using Section 9 as an excuse. That is why the majority of the postings were leaning that way.

Posted By Nicks For Mark Limon: It is quite clear that you have not understood what I have written. You have made assumptions and jumped to conclusions. Read again, word for word, what I have written and you will see that I: - have not attempted to break any agreement; - do not dislike posts that do not agree with my stance (it is an internet forum - I cannot get too emotional about it); - have not tried to hide behind a regulation (I am asking the IOSH community whether S9 of HASAWA is applicable to the situation I describe); As for your comment 'I wonder if your new employer knows you are doing this to your former employer' - doing what exactly? I have merely put up a post on an internet forum to debate the applicability of S9 of HASAWA to a scenario I described. Is this disloyal? Maybe it is in a dictatorship but I thought in the UK it was acceptable to ask questions. Nick

Posted By Nicks For Dave West: I agree with what you are saying and it is good to hear a range of opinions. Next time I will ensure that I consider the question more carefully prior to submitting it. N

Posted By Amanda Nick As you have asked for opinions I will offer mine.As with opinions and advice you can take it or leave it. I must agree with my colleagues who have posted above. The training is not covered by the Regs. However it is legal to be able to enter into these agreements with staff, and in fact it is something I do put in place. This level of training is costly and a company is entitled to get their money's worth following the training, it is the same as any other business resource. I have not heard the cost of the time to do the course inc NI and the usual agreement is on a sliding scale of costs, the cost decreasing as the time you stay with the co goes up. The question you need to answer (to yourself) is : did I sign and enter into this agreement, if the answer is yes for your own sake you need to honour this as not to do so erodes your credibility.

Posted By Nicks Hi all, You've convinced me that S9 doesn't apply; to be fair I was pretty convinced that was the case but it was an area worth exploring further - thanks for the advice. As to my particular situation; I did sign a Time Bar Certificate which I intend to honour fully and fortunately this will not be too costly. Have a nice weekend. Nick

Posted By Steve Cartwright Section 2 of HSWA. Every employer must provide Instruction, TRAINING and Supervision. If you required training to carry out your role then your employer is legally obliged to provide that training. However you did sign a document stating you would pay back if you left within a certain time.

Posted By PH Seem to remember a case a few years back that demonstrated that these contracts are not always binding. A whizzkid working for a London bank or law firm left the company despite the fact this company had sponsored her through Uni at a great cost and she had signed an agreement to pay back if she left. This went through the courts and she won on the grounds that although she had signed this contract the company had not given her the career opportunities etc. that her qualifications justified. Sorry I'm not more specific but it was some time ago. P