Discussion
Hypothetical question.
If your contract states 4 weeks/1 month/3 months notice is required and you wish to leave sooner and don't have accrued holiday to cover the difference, what potentially could your current, soon to be former employer do?
I guess this might depend on how long you still had left to work on your notice, so in this instance say more than 90% of it.
If your contract states 4 weeks/1 month/3 months notice is required and you wish to leave sooner and don't have accrued holiday to cover the difference, what potentially could your current, soon to be former employer do?
I guess this might depend on how long you still had left to work on your notice, so in this instance say more than 90% of it.
The employer could -
(1) seek an injunction to restrain the employee from working elsewhere during the notice period;
(2) sue for the additional cost of replacing the employee early;
(3) do nothing.
The use of option (1) is more common than people may suppose, especially when the employee is senior and the notice period is substantial, but would be unlikely in the case of a short notice period. The Court may grant an injunction if it considers it reasonable to do so in the individual circumstances. The employer may invoke an express (paid) garden leave in the contract, or could offer work (if the employee refuses work, the employer doesn't have to pay).
See Sunrise Brokers v Rogers.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/c...
(1) seek an injunction to restrain the employee from working elsewhere during the notice period;
(2) sue for the additional cost of replacing the employee early;
(3) do nothing.
The use of option (1) is more common than people may suppose, especially when the employee is senior and the notice period is substantial, but would be unlikely in the case of a short notice period. The Court may grant an injunction if it considers it reasonable to do so in the individual circumstances. The employer may invoke an express (paid) garden leave in the contract, or could offer work (if the employee refuses work, the employer doesn't have to pay).
See Sunrise Brokers v Rogers.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/c...
solo2 said:
Hypothetical question.
If your contract states 4 weeks/1 month/3 months notice is required and you wish to leave sooner and don't have accrued holiday to cover the difference, what potentially could your current, soon to be former employer do?
I guess this might depend on how long you still had left to work on your notice, so in this instance say more than 90% of it.
Hypothetical question, you are my employee, I don't want you round, you have a 3 month notice period can I just lock you out of the system and not pay you?If your contract states 4 weeks/1 month/3 months notice is required and you wish to leave sooner and don't have accrued holiday to cover the difference, what potentially could your current, soon to be former employer do?
I guess this might depend on how long you still had left to work on your notice, so in this instance say more than 90% of it.
What could you do... once you have decided the answer to that, then reverse it.
If you were my employee and you did that to me, not only would I bill you for the days that you decided you didn't want to come in... (this despite the fact you might not be doing anything or could be sat at an empty desk for 8 hours a day (all depends on how you broke the news) or you could be handing over your knowledge to someone else.)
If I found out you were working for the new company in the notice period, I would then warn the other company of your conduct, Plus I will be chasing them for damages as you are still my employee for X weeks/months.
Ever heard of don't burn your bridges?
If you did it to me on the wrong day (not had coffee, my rugby team lost, got out of bed wrong), all or some of the above would come into force... hey you never know it could mean you are fired before you even start the new job.
Treat your old company with respect, even if they don't deserve it as it could come back to bite you in the ass, be an ass to them and if you do it to the wrong person, then expect some type of reaction.
Number of factors (in no particular order);
1) If held to your notice will you do a satisfactory job (if at all)?
2) Will you use that period to gain knowledge or otherwise benefit a competitor at my expense?
3) Will your unwilling presence act as a demotivator for other staff and will you use the period to tap them up?
4) Can the business function satisfactorily without you present; your day to day job, how fast can I recruit a replacement, do I need you for handover?
5) Can I put you on gardening leave or otherwise restrict your access to people/data that are sensitive?
1) If held to your notice will you do a satisfactory job (if at all)?
2) Will you use that period to gain knowledge or otherwise benefit a competitor at my expense?
3) Will your unwilling presence act as a demotivator for other staff and will you use the period to tap them up?
4) Can the business function satisfactorily without you present; your day to day job, how fast can I recruit a replacement, do I need you for handover?
5) Can I put you on gardening leave or otherwise restrict your access to people/data that are sensitive?
Breadvan72 said:
The employer could -
(1) seek an injunction to restrain the employee from working elsewhere during the notice period;
(2) sue for the additional cost of replacing the employee early;
(3) do nothing.
The use of option (1) is more common than people may suppose, especially when the employee is senior and the notice period is substantial, but would be unlikely in the case of a short notice period. The Court may grant an injunction if it considers it reasonable to do so in the individual circumstances. The employer may invoke an express (paid) garden leave in the contract, or could offer work (if the employee refuses work, the employer doesn't have to pay).
See Sunrise Brokers v Rogers.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/c...
My company has just came back to me with these after I handed my notice in this week. (1) seek an injunction to restrain the employee from working elsewhere during the notice period;
(2) sue for the additional cost of replacing the employee early;
(3) do nothing.
The use of option (1) is more common than people may suppose, especially when the employee is senior and the notice period is substantial, but would be unlikely in the case of a short notice period. The Court may grant an injunction if it considers it reasonable to do so in the individual circumstances. The employer may invoke an express (paid) garden leave in the contract, or could offer work (if the employee refuses work, the employer doesn't have to pay).
See Sunrise Brokers v Rogers.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/c...
DavidJG said:
Big question: are you going to a competitor? If so, the existing employer may just want you gone asap.
In that situation an employer will often wish to hold the employee to the notice period and impose garden leave (if the contract provides for this). This may be so whether or not the contract also contains a post termination restriction on the employee's working activities (although it is now customary to deduct any period spent on garden leave from the period for which a post termination restriction is in force).Sorry for the hijack
were closing down in June and my role is being made redundant, As explained I handed my notice in this week saying that 27th May would be my last day but will be looking to leave before hand if I get another job which hopefully will happen.
The response this morning was of the above that Breadvan72 stated that they will look for a injunction to stop me leaving before hand or will be commencing legal action if I decided that I will just walk away (Which I have no intention too).
They are stating the loss per day to the company and how much a Temp will cost them to cover and close down the warehouse in June. Apparently this is the legal advice they have and they can stop me leaving even thou we are in the redundancy period. Im not going to a competitor but going to a different industry all together.
They have also failed to consult or make me a offer of further employment as the office will still be based in the UK. And have rejected holiday requests for interviews which I've just taking as sick
were closing down in June and my role is being made redundant, As explained I handed my notice in this week saying that 27th May would be my last day but will be looking to leave before hand if I get another job which hopefully will happen.
The response this morning was of the above that Breadvan72 stated that they will look for a injunction to stop me leaving before hand or will be commencing legal action if I decided that I will just walk away (Which I have no intention too).
They are stating the loss per day to the company and how much a Temp will cost them to cover and close down the warehouse in June. Apparently this is the legal advice they have and they can stop me leaving even thou we are in the redundancy period. Im not going to a competitor but going to a different industry all together.
They have also failed to consult or make me a offer of further employment as the office will still be based in the UK. And have rejected holiday requests for interviews which I've just taking as sick
Pacta sunt servanda! This means "contracts are to be honoured". You made a contract to give X period of notice. You cannot complain if your employer seeks to hold you to your agreement.
Deficiencies in redundancy process may give rise to an unfair dismissal claim, but that's rather a different thing.
Note that the employer cannot force you to work; only to serve out your notice.
Deficiencies in redundancy process may give rise to an unfair dismissal claim, but that's rather a different thing.
Note that the employer cannot force you to work; only to serve out your notice.
Breadvan72 said:
Pacta sunt servanda! This means "contracts are to be honoured". You made a contract to give X period of notice. You cannot complain if your employer seeks to hold you to your agreement.
Deficiencies in redundancy process may give rise to an unfair dismissal claim, but that's rather a different thing.
Note that the employer cannot force you to work; only to serve out your notice.
Don't get me wrong I will work for the 4 weeks its the attitude shown by them. If they hold out and stop me it will impact me and my family financially as they are shown no goodwill and the ive only been there for just over 3 years. Deficiencies in redundancy process may give rise to an unfair dismissal claim, but that's rather a different thing.
Note that the employer cannot force you to work; only to serve out your notice.
Interesting addition to this thread, I just received my written terms and conditions - 2 months into the job. I've gone back to HR and said "sorry, can't accept these, working under protest".
Can they hold me to the notice period? I have been requesting the T&Cs since two months before starting work with them ...
They already changed the location of the office from the one agreed verbally before I took the job and it's not the job I agreed to do so I'm getting a bad feeling and am not keen to be held to three months notice even while in "probation" ...
Can they hold me to the notice period? I have been requesting the T&Cs since two months before starting work with them ...
They already changed the location of the office from the one agreed verbally before I took the job and it's not the job I agreed to do so I'm getting a bad feeling and am not keen to be held to three months notice even while in "probation" ...
You can therefore argue convincingly that you have not agreed to three months notice. The terms now proposed can be characterised as attempts to vary an extant contract. In that contract the notice period must be inferred by reference to the type of job you are doing. The statutory minimum is one week, but the contractual requirement may be greater. If you want to hang tough, argue that you are on statutory minimum of one week. A month might, however, be a more realistic inference in an average sort of job.
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