9. Pay, repayment clauses and other deductions
In many cases, these clauses are not unlawful. Many employers use them fairly to protect their investment in staff recruitment, education, and training. However, they may be problematic where an employer uses them to penalise an employee who decides to leave their employment. In the Code of Practice for the international recruitment of health and social care personnel in England, the Government explicitly discourages their use and asks that employers consider waiving them for a wide range of reasons including if the employee’ s health and wellbeing is being affected or if they wish to move roles for career progression.
Repayment clauses are only enforceable if they reflect the employer’ s genuine losses – not as a punishment. For example, the NHS caps recovery of recruitment costs at £ 3,000 and requires that this amount reduces over time.
If a clause is vague, inflated, or intended to deter the worker from leaving, it may be found unenforceable in court as a“ penalty clause”. However, in reality, these claims can be hard to bring.
You can find guidance on repayment clauses from the NHS And from the government.
Loans for housing or transport
Some employers offer loans for accommodation or cars, deducting repayments directly from wages. If not transparent, these deductions may breach minimum wage law or lead to debt bondage.
What reps and caseworkers can do about deductions
The first step when helping any work facing unreasonable costs, debt and deductions is to gather the necessary evidence:
• Review contracts for repayment or deduction clauses
• Ask how much the worker paid and to whom
• Look for tapering in repayment terms( e. g. reducing over time)
• Check that any deductions don’ t reduce pay below NMW
• Gather all contracts, receipts, payslips, and correspondence.
The next steps are to:
• Challenge clauses that lack clear evidence of costs informally( see below)
• Refer to legal or immigration advice where appropriate
• Help them report recruiters or employers to the GLAA or Home Office if needed
These situations are very case specific and if an employer asks a member to repay such sums or suggests that it will pursue legal action for failure to make payment, reps and caseworkers should seek advice as soon as possible. However, union legal
50 LRD • Supporting migrant workers