[1]The claimant’s unauthorised deductions from wages claim is not wellfounded and is dismissed.[2]The tribunal has jurisdiction to hear and determine the respondent’s contract claim.[3]The respondent’s contract claim has been proved and the claimant is ordered to pay the respondent the sum of £758.43.
REASONS
[1]By a claim form presented to the tribunal on 6 November 2016, the claimant made claims of notice pay, holiday pay and arrears of pay. To these claims the respondent, in it’s response presented on 5th December 2016, denied liability and asserted that the claimant was contractually obligated to repay the course fees as he had terminated his contract with the respondent within 2 years following the completion of it.
The Issues
[2]The issues I had to determine were as follows:-(1) The construction of the Learning and Development Agreement signed by the claimant on 3rd September 2013?(2) Whether the term of that agreement had been varied following a discussion between the claimant and Mr Mark Digby, Workshop Manager?(3) Whether the clause in respect of reimbursement of course fees was a penalty clause?(4) Whether the said clause acted as an effective restraint of trade on the claimant?(5) Whether the tribunal has jurisdiction to hear and determine the respondent’s contract claim?
The evidence
[3]I heard evidence from the claimant. No oral evidence was called on behalf of the respondent.[4]In addition, the parties produced a joint bundle of documents comprising of 49 pages. Reference will be made to the documents as numbered in the bundle.
Findings of Fact
[5]The respondent provides fleet management, transportation and supply chain solutions to a wide range of businesses nationwide.[6]On 16 August 2010, the claimant commenced employment with the respondent as a Trainee Technician based at the respondent’s Park Royal site in Greater London on a three years’ apprenticeship and was due to graduate in July 2013. His initial annual salary was £12,272. He had a clean disciplinary record and was anxious to develop his knowledge, skills and experience. On 2 September 2013, he completed the respondent’s Learning and Development application form for enrolment onto the Higher National Certificate Motor Vehicles Course on a part-time basis, from September 2013 to July 2015, at Stephenson College, Coalville. The course fees were as stated on the form, £5,000 and he was required to take time off, on block release of 6 weeks each year. In the application form, in bold, it stated the following:- “I understand that should I leave Ryder after completion of study or failure to complete the course of study will result in funds being recovered. Please refer to the Learning & Development confirmation letter.”[7]The form was signed by the claimant and counter-signed by Mr Mark Digby, Workshop Manager, on 2 September 2013. (page 40 of the joint bundle)[8]The following day, 3 September 2013, the claimant met with Mr Digby and signed the confirmation letter acknowledging his receipt and understanding of the letter and his acceptance of the terms contained within it. The letter was headed, “Learning and Development Agreement”.[9]It is the claimant’s case that prior to signing the agreement, he sought clarification on whether he would be obligated to pay either all or 50% of the course fees if his employment was terminated. He said in evidence that Mr Digby told him that the period ran from the date of his signature for either 12 months during which, if his employment was to terminate, he would be required to reimburse 100% of the course fees to the respondent or if it was to terminate between12-24 months after he signed, 50% of the course fees.[10]The Learning and Development Agreement stated the following:- “I am writing to confirm that your recent application for funding of HNC Motor Vehicle, has been approved and the cost of £5,000 will be fully funded by the company. As you are aware, the company looks to fund approved courses, in order to support the development of employees within their chosen career. Regrettably, in a small minority of cases, it becomes inevitable that employees do leave the company, or do not complete the course; therefore, the funding of your course is conditional upon you completing this Learning and Development Agreement. In the event that you do not complete the course, leave employment during the course, or leave employment during a specified period after the course has ended, the following provisions apply:- Termination of employment Whilst studying In the event that your employment with Ryder terminates, for whatever reason, (including but not limited to resignation and any form of dismissal, excluding Redundancy or by way of a transfer under the Transfer of Undertakings Regulations (TUPE), whilst you are undertaking your course of study, including exams/further study/exam re-takes, you will be required to pay 100% of the total course fees. Following completion In the event that your employment with Ryder terminates, for whatever reason, (including but not limited to Resignation and any form of dismissal excluding Redundancy or by way of a transfer under the Transfer of Undertakings Regulations (TUPE), you will be required to pay the relevant percentage of the total course fees, as detailed below:- 00 to 12 months after the course – 100% 12 to 24 months after the course – 50% Non completion of the course If you do not complete the course within 2 years, from the date you initially commenced studies, you will be required to repay 100% of the total course fees. The company reserves the right to deduct from your salary any monies owing (Section 1.4 of the Employee Handbook). If you leave the company and your final salary payment is not sufficient to meet any debt, you will be required to repay the outstanding balance, within one month of the date of termination of employment. Should you have any questions regarding the content of this agreement, please contact me direct, otherwise I look forward to receiving your signed agreement. I am very pleased that the company has been able to support you with your chosen course of study and I wish you success with your ongoing development within Ryder.” (41)[11]The claimant completed the course in July 2015.[12]On 8 August 2016, he resigned on notice which was due to expire on 2 September 2016. This was in accordance with the provisions in the respondent’s handbook. He told me that he decided to resign because he felt that his career path with the respondent was becoming increasingly limited and wanted to pursue a new challenge with a different company.[13]On 30 August 2016, he met with Mr Duncan Scillitoe, Senior Operations Manager, who had received a letter from Learning and Development stating that the claimant may have to reimburse the respondent the course fees. Notes were taken of their discussion which were signed by them. The following is a record:- “DS Wanted to catch you before you leave this week because a letter has been sent to me from L&D which indicates the company may require you to reimburse them for training that you undertook. Form given to Adam. Copy of letter to Adam Read. AR Tim mentioned this earlier. DS Do you understand the letter and the agreement? I wanted to check your understanding and also how that you intend to reimburse the company. AR I’m confused by this because when I signed the letter of 3rd September 2013 I signed believing that I would have to reimburse the company for up to 24 months after signing. That was 3 year ago, so surely I’m free of any commitment under this agreement. DS Ok. I will double check and get back to you.” (42)[14]After their meeting Mr Scillitoe emailed Ms Emma Featherstone regarding the claimant’s understanding of the term in the agreement in respect of the reimbursement of course fees. He wrote:- “I discussed that with Adam. He claimed it wasn’t explained to him like that and that it is not his understanding, his understanding is from the date of his signature. Following completion still does not specify dates and does appear ambiguous. I think we need a bit more of a definitive legal resolution on this as it could end up in a dispute. You have also sent me another document saying that he owes £955 not £5,000 or part thereof. I think we need to get our position straight before I go back to him with our response.” (43)[15]The claimant asserted that had Mr Digby told him at the time that time ran from the date when the course was completed, he would not have signed the agreement. He said that he was told by Mr Digby that it was from the date when he signed the agreement.[16]Mr Digby was not called to give evidence to rebut the claimant’s evidence. What is clear is that when the matter was discussed with the claimant by Mr Scillitoe on 30 August, the claimant made no reference to Mr Digby having told him that the time ran from the date he signed the agreement. If the claimant is right then the 2 years would have expired in September 2015. The respondent having incurred the cost of the course fees, there would little time during which it would have benefited from its investment in the claimant as he would have been entitled to leave his employment from that point without being required to reimburse the course fees.[17]I do not accept the claimant’s evidence that Mr Digby informed him that time started to run from the date of his signature on the agreement, namely 3 September 2013. When it was discussed with Mr Digby he made no mention of such a conversation. From the email referred to sent by Mr Digby to Ms Featherstone, he did not mention that that was his understanding but stated that a part of the wording appeared to be ambiguous.[18]The claimant told me that once he signed the agreement he put it away and was not referred to at any point until the meeting with Mr Scillitoe on 30 August 2016.[19]Although the respondent was initially seeking reimbursement of £2,500 being the 50% of the £5,000 stated as being the course fees, upon receipt of invoices from Stephenson College, that figure was adjusted to a lesser sum. The total course fees came to £4,374 based on the invoices supplied.[20]In the claimant’s final payslip dated 30 September 2016, the sum of £1,428.57 was deducted from the figure of £2,500 leaving £1,071.43. (47)[21]This was later adjusted; 50% was deducted from £4,374 leaving £2,187. After deducting £1,428.57 which was taken out of the claimant’s salary, the balance owed to the respondent is £758.43. This is the sum claimed in the respondent’s counterclaim or contract claim.[22]The claimant’s case is that the sum of £1,428.57 is an unauthorised deduction from his wages and is unlawful. Further, that he should not be required to pay the balance owed.[23]He stated in his claim form that his gross monthly salary by the date of termination was £3,120, the equivalent of £37,440 a year. Submissions[24]I have taken into account the detailed written and oral submissions of Mr Young, counsel of behalf of the claimant and Mr Feeny, counsel on behalf of the respondent.[25]In summary, Mr Young submitted that there were three reasons why there was an unauthorised deduction from the claimant’s wages and why the respondent’s contract claim should fail, namely the construction of the contract; that the disputed clause is a penalty; and it amounted to a restraint of trade; and that there is no jurisdiction to hear the respondent’s claim.[26]On construction of the contract, he submitted that the section under “Following Completion” was ambiguous and that even Mr Scillitoe acknowledged its ambiguity. The words might reasonably be understood to be following completion to the agreement and “After the course” might reasonably be understood to mean after the start of the course which ran for a two year period. The ambiguity should be construed against the respondent in accordance with the contra-proferentem rule, Tam Wing Chuen. The construction should, therefore, be that the clause allows for the deduction of the relevant sums from the date of the agreement rather than from the date of completion of the course.[27]Mr Young further submitted that what Mr Digby said to the claimant amounted to an express variation of the contract. An oral assurance is sufficient to vary the contract, Aldous, paragraphs 7 and 10 of the judgment.[28]In relation to whether the clause was a penalty, Mr Young submitted that it was and that it was not a liquidated damages clause, Giraud. He said that the sum due, £5,000 was in excess of the cost of the course. It is not an answer for the respondent to say that it had been reassessed and that the sum is lower than what was originally stated as the tribunal had to look at the position at the time of the drafting of the agreement. It was not at the time an accurate assessment of loss.[29]There was nothing in the clause that capped the claimant’s liability if he left his employment early. Where the sum stipulated in a clause is more than a specific sum of money that is the subject of the breach of contract, it would amount to a penalty. It would also amount to a penalty clause where the sum to be reclaimed is extravagant and unconscionable, Dunlop Pneumatic Tyre Co Ltd., Lord Dunedin, page 87. Accordingly, the clause is a penalty and is either void ab initio or is unenforceable.[30]As regards restraint of trade, Mr Young submitted that a clause purporting to allow the re-payment of fees for the training course is capable of amounting to an unconscionable restraint of trade. The test for whether such a clause is unenforceable is whether or not the bargain is fair, whether the interests are both reasonably necessary for the protection of legitimate interests of the promise and commensurate with the benefits secured to the promisor under the contract. The inequality of bargaining power between the claimant and the respondent; the economic sanctions if the claimant left his employment prior to the expiration of two years after the completion of the course; the sum stipulated exceeded the true cost of the claimant’s training to the respondent; no relationship between the periods fixed in the clause and the periods it would have taken the respondent to recover its outlays by making use of the claimant’s skills; and it must be inferred that the respondent’s true motive was not to recover the money expended but to deter its employees who received training from leaving to take up employment with other companies, Electronic Data Systems Ltd v Hubble.[31]In relation to the respondent’s contract claim, Mr young submitted that it was the claimant who completed the claim form to which the tribunal listed the jurisdiction as breach of contract “BOC”. In fact, what he was claiming was unauthorised deductions from wages which does not entitle the respondent to bring a contract claim. Accordingly, the tribunal has no jurisdiction to hear it. 31. Mr Feeny submitted on the interpretation of the contract, that what was allegedly said by Mark Digby is not accepted by the respondent. Even if it is accepted by the tribunal, the claimant’s factual case did not make out his claim. There is no ambiguity as to “Following completion” meaning completion of the course. The document must be read as a whole and the second paragraph refers specifically to “[leaving] employment during a specified period after the course has ended”.[32]Mr Feeny further submitted that the claimant has relied on a comment from Mr Digby. Even if it is found that the comment was made, no reasonable observer would think the comment was itself a contractual term in substitution for the clear written term in the contract. At its highest, the claimant could claim that the comment by Mr Digby was a representation which was false. The prove misrepresentation he would still have had to have relied on the representation in entering into the contract but this is not accepted by the respondent. In any event, any misrepresentation only gives the claimant, as the injured party, the right to rescind the contract. It is not void ab initio. The claimant has not rescinded the contract and had not claimed to have done. Rescission is in any event impossible in circumstances where the claimant has already had the benefit of the training course.[33]Mr Feeny submitted that for the avoidance of doubt, the tribunal does not have jurisdiction to consider a claim for misrepresentation in tort or under the Misrepresentation Act 1967. Accordingly, any such arguments are outwith the scope of the claimant’s claim.[34]As regards the assertion that the term constituted a penalty clause, he said that the aim of the contractual term is clear, it is to refund the employer in circumstances where it has invested in the development of the employee but without sufficient long term gain and is not a penalty to deter the employees from committing a breach of contract.[35]The reliance on the mistaken amount initially claimed is misconceived. The contract itself refers only to repayment of course fees. It does not fix the repayment at £5,000. A mistake made in calculation of repayment of course fees is materially different from the contract stipulating a fixed amount to be paid irrespective of the price of the course fees.[36]Further and in the alternative, Mr Feeny further submitted, the discrepancy discovered could hardly be said to be “extravagant” or “unconscionable”, as per Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79, cited by the claimant.[37]In relation to the clause being a restraint of trade, he submitted that the claimant was seeking to distort the obvious purpose of the contractual term, namely to refund the employer in the event its investment in training was not fully realised as a result of the employee’s decision to leave employment. It is not intended to prevent employees from seeking alternative work.[38]Whether a restraint of trade clause is enforceable is determined by reference to its “oppressiveness” (Proactive Sports Management Limited v Wayne Rooney, Coleen Rooney (Formerly McLoughlin), Stoneygate 48 Limited, Speed 9849 Limited [2012] IRLR 241).[39]Repayment of 50% of the course fees is in no way oppressive. It is simply a matter for the employee to weigh in the balance when considering the financial incentives in moving jobs at that time.[40]In relation to the jurisdiction issue in respect of the respondent’s contract claim, Mr Feeny submitted that the claimant ticked the notice pay box on the claim form. The tribunal allocated breach of contract, “BOC”, jurisdiction. This entitled the respondent to put in its contract claim. The claimant had breached the agreement. Accordingly, the respondent is entitled to the sum claimed of £758.43. The Law32. I have taken into account Section 13, Employment Rights Act 1996 and Articles 3, 4 and Employment Tribunals Extension of Jurisdiction (England and Wales) Order. In addition, rule 23, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The following cases were considered:- Royal Mail Group Limited v M Aldous UKEAT/0593/12/BA; Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1914] AC 79; Giraud UK Ltd v Smith [2000] IRLR 763; Electronic Data Systems Ltd v Hubble [1987] Lexis Citation 715; Investors Compensation Scheme Ltd v West Bromwich Building Society and Hopkin & Sons [1998] WLR 896; Proactive Sports Management Ltd v Rooney & Others [2012] IRLR 241; A Schroeder Music Publishing Company Ltd v Macaulay [1974] WLR 1308; Primus Telecommunications Plc v MCI World Com International Inc [2004] EWCA Civ 957; Tam Wing Chuen and another v Bank of Credit and Commerce Hong Kong Ltd [1996] BCC388.33.Section 13 Employment Rights Act 1996, proscribes any deductions from a worker’s wages unless it is, “…required or authorised by virtue of a statutory provision or a relevant provision in the worker’s contract or the worker has previously signified in writing his [or her] agreement or consent to the making of the deduction.”34. By virtue of section 24(2), “Where a tribunal makes a declaration under subsection (1), it may order the employer to pay to the worker (in addition to any amount ordered to be paid under that subsection) such amount as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him [or her] which is attributable to the matter complained of.”35. Under rule 23 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended, an employer is entitled to present a contract claim. This provides, “Any employer’s claim shall be made as part of the response presented in accordance with rule 16, to a claim which includes an employee’s contract claim…” Conclusions Construction of the contractual term36. The interpretation of a contract is an objective exercise. Neither the claimant’s nor Mr Scillitoe’s views carry much weight.37. In Investors Compensation Scheme Ltd v West Bromwich Building Society, Lord Hoffman held that, “(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at time of the contract. (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent…… (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars: the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean…. (5) The “rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had….” page 912 paragraph H.38. It is difficult to see, if the claimant is right, how Mr Digby could have given the interpretation ascribed to him by the claimant at their meeting on 3 September 2013, in relation to the clause in the agreement. The wording of the agreement, in my view, is clear, “Following completion In the event that your employment with Ryder terminates, for whatever reason, (including but not limited to Resignation and any form of dismissal excluding Redundancy or by way of a transfer under the Transfer of Undertakings Regulations (TUPE), you will be required to pay the relevant percentage of the total course fees, as detailed below:- 00 to 12 months after the course – 100% 12 o 24 months after the course – 50%”39. It referred to “after the course” not from the date of signature. The application form also made reference to after completion of study. There is no ambiguity. I, therefore, do not apply the contra-proferentem rule. 40. I did not find that Mr Digby said to the claimant what the claimant attributed to him. The claimant did not refer to it in his discussion with Mr Scillitoe. It follows from this that there was no variation of the term of the agreement by Mr Digby, Royal Mail Group Limited v M Aldous.
Conclusions
[41]If the statement made by Mr Digby induced the claimant into signing the agreement, his recourse is misrepresentation but that is not my finding. Was the term a penalty or a liquidated damages clause?[42]In the case of Dunlop Pneumatic Tyre v New Garage & Motor Co, the House of Lords set out the general principles in relation to penalty and liquidated damages , Lord Dunedin, “1. Though the parties to a contract who use the words “penalty” or “liquidated damages” may prima facie be supposed to mean what they say, yet the expression used is not conclusive. The court must find out whether the payment stipulated is in truth a penalty or liquidated damages. This doctrine may be said to be found passim in nearly every case. 2. The essence of a penalty is a payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage… 3. The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not at the time of breach…”[43]In the Giraud UK Ltd v Smith case, it was held by the Employment Tribunal and approved by the Employment Appeal Tribunal, that a term in the employee’s contract allowing his employer to deduct a sum from his final salary in the event that he failed to give the requisite 4 weeks’ notice, was held to be a penalty clause as it was not a genuine pre-estimate of the loss that the employer could suffer in the event of the employee’s breach. The EAT held in paragraphs 10 and 11, the following: “10. It is of significance that the clause in this case did not seek to place any limitation on the right of the employer to recover damages for his actual loss in the event of its being greater than that specified in the clause and the calculation which it laid down. Thus, in the present case, the employee is in a position where if the actual loss turned out to be nil the employee is liable for the calculable sum, but if the actual loss is greater than the calculable sum he may face an unlimited claim for the balance. This is a mater which weighed heavily on the employment tribunal. It also weighs heavily on us. 11. In our judgment it is difficult to see how in these circumstances the clause can represent a genuine pre-estimate of loss. Moreover, we agree with the implicit finding of the employment tribunal that the clause, by reason of this aspect of its application, is an oppressive clause because it takes a form which can be described colloquially a ‘heads I win, tails you lose’.[44]The Giraud case is not on all fours with the case I am considering. In Giraud no money had been expended by the employer over the notice period. The employer could have mitigated its losses during the notice period yet Mr Smith would be liable. In the case before me money was spent on the claimant’s course. The respondent believed the recoverable course fees was £5,000. It was in my view a genuine pre-estimate from which between 12 to 24 months after completion of the course it believed it could recover from the claimant the sum of £2,500 which was later clarified by reference to the actual invoices from Stephenson College. The difference between that figure and the actual sum of £4,374, is £626. Though significant to the claimant it was a sum he was never going to be liable for., A provision regarding reimbursement of course fees should the employee leave within a defined period is quite common in many industries and the reimbursement of money paid under such a contract will not automatically be a penalty. The claimant had the benefit of the course and the course fees were incurred by the respondent. He has a HNC qualification he could use to advance himself in his chose field of engineering. The respondent, having invested in him and is also entitled to benefit from his acquired knowledge and skills for a limited period.[45]As already stated, the Giraud case can be distinguished from this case in that there was no ascertainable loss to the employer. There was no evidence of how that loss had been calculated. Hence the finding that it was a penalty.[46]In this case the respondent did incur an expense in paying the course fees. It acknowledged it would derive a benefit after the first year following completion of the course, hence the reimbursement of 50% of the course fees. After 2 years, no obligation to pay. I have come to the conclusion that the reimbursement term was not a penalty but was in the nature of a liquidated damages clause. Restraint of trade[47]Was the “Following Completion”, clause in relation to the termination of the contract, a restraint of trade? The test is whether it is oppressive, Proactive Sports Management Ltd. In that case the disputed contract was entered into by Mr Wayne Rooney at the time when he was 17 years of age and a much valued, promising footballer. He assigned his image rights to his company, Stoneygate. Stoneygate then appointed Proactive, a sports agency, to act as its agent by way of an image rights representation agreement. Mr Rooney, without taking legal advice, signed up with Proactive for 8 years. Five years later he fell out with Proactive. Proactive sued for loss of commission, amongst other things. He and Stoneygate contended that the agency agreement was a restraint of trade and unenforceable. The High Court judge agreed. On appeal to the Court of Appeal, Lady Justice Arden held that the judge was entitled to conclude that the agency agreement was unenforceable having regard to the unusual length of the contract term; the circumstances surrounding its execution; the absence of independent legal advice; and the unequal bargaining power between the parties, had predisposed the agreement to a finding that it was one sided, unfair or oppressive.[48]In another Court of Appeal case, Electronic Data Systems Ltd v Hubble, the Court was concerned whether there was an arguable case to be tried as summary judgment had been entered against Mr Hubble. He had decided to change career from being a distinguished sportsman, to computing. He applied for work with EDS and performed well at interviews. He signed a contract during his third interview on 17 December 1984. It was a term of the contract that he would participate in the EDS’s Systems Engineering Development (SED) Training Programme which covered three phases: the first was working at the premises of a customer on the customer’s installation while being supervised; the second, was 10 weeks classroom instruction; and the third was to return to the customer to put into effect what he had learned in the classroom. The first and third phases did not have precise periods. After the third phase, if EDS was satisfied that he had the requisite skill and experience, he would “graduate” as a systems engineer. If Mr Hubble should resign or be dismissed for gross misconduct after commencement of the second phase of training, three promissory notes would become effective, namely within 24 months £4,500 would be paid to EDS by him; between 25 to 30 months £2,250; and between 30 to 36 months £1,125. Mr Hubble signed the three promissory notes on 3 October 1985, before embarking on the second phase of his training. On 20 May 1986, he became disillusioned with EDS and resigned giving one month’s notice. Since he had not completed two years from the commencement of the second phase of his training, EDS made a demand under the promissory note for the payment of £4,500. Mr Hubble refused to pay.[49]Mr Hubble argued that the promissory note was an unconscionable restraint of trade and unenforceable. It acted as an unfair inhibition on the exercise of his contractual right to leave his employment with EDS by giving one month’s notice if he was dissatisfied and wished to make use of his abilities elsewhere. Mustill LJ cited Lord Diplock’s judgment in the case of Macaulay v Schroeder Music Publishing Co Ltd [1974] I WLR 1308, namely that in a restraint of trade case was the bargain fair? Were the restrictions reasonably necessary for the protection of the legitimate interests of the promisee and commensurate with the benefits secured to the promisor under the contract? The relative bargaining power of the parties and all the provisions of the contract must be taken into consideration.[50]His Lordship took into account that there was no real equality of bargaining; the sum of £4,500 represented about half the Mr Hubble’s annual salary; there was no security of employment yet Mr Hubble was required to work two or three years after the conclusion of his training; the sum of £4,500 overstated the true cost of the training and its value to EDS; there was no demonstrable relationship between the periods fixed by the promissory notes and the periods which would have taken EDS to recover its outlays by making use of Mr Hubble’s skills; and that the inference could be drawn that the true motive of EDS was to prevent employees from going off to use their knowledge and skills in the employment of its competitors. Mr Hubble was given leave to defend the claim.[51]I have come to the conclusion that although the respondent is a company and the claimant was an employee at the time of the contract, the respondent did not insist that he should undergo training unlike in the Electronic Data Systems Ltd v Hubble case. It was the claimant who decided to improve his skills and future employment prospects by considering enrolling onto the HNC course. He was given the Learning and Development Form to read. It made reference to the respondent recovering funds expended on the course should the claimant leave after completion of it. The claimant signed the form with that understanding and later signed the agreement.[52]Although the position of the parties was, at the time of the agreement, unequal in terms of bargaining power, there was no insistence upon the claimant by the respondent that he should attend the course and sign the agreement.[53]The sum to be recovered of £2,187, represents 1/17th of the claimant’s gross annual salary.[54]The maximum period during which he was required to reimburse the respondent in respect of the course fees was two years after completion of the course. Such a timeframe is not uncommon in many industries where the employer is seeking to recover its costs should the employee leave to take up more remunerative employment elsewhere after having undergone a period of education and/or training at the employer’s expense.[55]I accept that there is no apparent correlation between the course fees and the times stipulated in the agreement when either all or 50% should be paid. It would be difficult to quantify such a benefit to the employer in monetary terms. I do take the view that 100% reimbursement within the first year following completion of the course and 50% during the second year are neither onerous, unfair nor oppressive given the sums involved.[56]Havin considered the evidence and having regard to my findings of fact, I do not draw the inference that the motive on the part of the respondent in seeking reimbursement of the sum of either £4,374 or £2,187 was to deter the claimant from seeking employment with the respondent’s competitors.[57]I have, therefore, come to the conclusion that the bargain was fair and was not oppressive.[58]As the claimant has signed the agreement authorising the deduction, his claim is not well-founded and is dismissed. Jurisdiction[59]In the claim form the claimant stated that he was seeking notice pay which is treated by the tribunal as a breach of contract claim. The issue for me to hear and determine was, in essence, a contractual one. Under rule 23 a respondent can include a contract claim as part of its response. I have, therefore, come to the conclusion that there is jurisdiction to hear and determine the respondent’s contract claim.[60]As the disputed contractual term is enforceable, the respondent’s contract claim has been proved. The claimant is ordered to pay the sum of £758.43 to the respondent.