Any Employment Law Specialists Out There ?
Discussion
I could use some legal advice and possibly someone to act on my behalf. Obviously, I would be prepared to pay for any expert advice and for someone to represent me, should that be required.
However, any initial thoughts/comments would be gratefully appreciated. The details of my case are as follows:
1. I have been employed for a number of years with the same employer and I have now decided that it is time to move on.
2. My contract of employment stipulates that I have to give and mostly likely serve a lengthy notice period of 6 months.
3. Having looked at my contract of employment recently, I realise that neither myself or my employer has actually signed it (an HR oversight !).
My question being, how does this oversight affect my obligation to give and serve the 6 month notice period ?.
However, any initial thoughts/comments would be gratefully appreciated. The details of my case are as follows:
1. I have been employed for a number of years with the same employer and I have now decided that it is time to move on.
2. My contract of employment stipulates that I have to give and mostly likely serve a lengthy notice period of 6 months.
3. Having looked at my contract of employment recently, I realise that neither myself or my employer has actually signed it (an HR oversight !).
My question being, how does this oversight affect my obligation to give and serve the 6 month notice period ?.
Signing a contract is often neither here nor there. As has been mentioned, turning up for work and fulfilling all the other elements of the contarct over a six year period would very much imply that you originally agreed to the terms. I think it's called "part performance" in legal terms.
I remember a previous thread on here where someone stated that the longest notice period you can be forced to work is the equivalent to your salary payment period, which in most cases is 1 month. I am sure this was backed up by links to the appropriate emloyment legislation. Worth doing a search to try and find it
Agree on the non-signing of the contract - we've just been through that and it's irrelevant.
Be a little careful about saying you're going to work for a competitor - our firm suggested some of our people would be placed on gardening leave for 6 mths, although in the end people were just paid off and allowed to leave. Some people had non-compete clauses in their contracts but advice we received was that they're un-enforceable, except, perhaps, if the job you're going to is *exactly* the same as the one you currently do.
Has anybody else left your firm fairly recently - how were they dealt with?
Be a little careful about saying you're going to work for a competitor - our firm suggested some of our people would be placed on gardening leave for 6 mths, although in the end people were just paid off and allowed to leave. Some people had non-compete clauses in their contracts but advice we received was that they're un-enforceable, except, perhaps, if the job you're going to is *exactly* the same as the one you currently do.
Has anybody else left your firm fairly recently - how were they dealt with?
Not specifically my area but the principles are:
1. although not signed the written contract is the best evidence of what the terms of your contract are
2. generally you can be held to your notice period and if they wanted to an employer could insist that you do not work for another company in that period
3. if, as a matter of practice, the firm allows people to leave early you could use that to claim the same right
4. non-competition clauses are not automatically void but they have to be reasonable in scope, in time and in geographical extent within the context of the job
5. if you insist that you will leave early then you could be in breach of your contract and they would not have to pay you for the notice period and might be able to prevent you working somewhere else - instead indicate that you are willing to work for the shorter of (1) the notice period of 6 months or (2) whatever they use as the practical notice period for people leaving
6. they cannot actually force you to work out the notice period because forcing someone to work is technically known as slavery (as if we didn't know) but if you do not work diligently you could be breach and point 5 applies - you don't get paid and might be stymied on the new job
7. they cannot force you onto gardening leave unless it is in your contract (but I would have loved it!)
I'm working out my notice at the moment - three months and God is it driving me nuts but there is nothing much else I can do. Generally if you have a specified notice period in your contract then you have to be prepared to see it through.
1. although not signed the written contract is the best evidence of what the terms of your contract are
2. generally you can be held to your notice period and if they wanted to an employer could insist that you do not work for another company in that period
3. if, as a matter of practice, the firm allows people to leave early you could use that to claim the same right
4. non-competition clauses are not automatically void but they have to be reasonable in scope, in time and in geographical extent within the context of the job
5. if you insist that you will leave early then you could be in breach of your contract and they would not have to pay you for the notice period and might be able to prevent you working somewhere else - instead indicate that you are willing to work for the shorter of (1) the notice period of 6 months or (2) whatever they use as the practical notice period for people leaving
6. they cannot actually force you to work out the notice period because forcing someone to work is technically known as slavery (as if we didn't know) but if you do not work diligently you could be breach and point 5 applies - you don't get paid and might be stymied on the new job
7. they cannot force you onto gardening leave unless it is in your contract (but I would have loved it!)
I'm working out my notice at the moment - three months and God is it driving me nuts but there is nothing much else I can do. Generally if you have a specified notice period in your contract then you have to be prepared to see it through.
Just been made redundant and in doing so spent a lot of time (and money) researching employment law.
My understanding is;
Even if not signed contract as previous "part performance" applies (ie you agree to part of it (pay, hours, turning up etc etc, therefore by default you agree to all of it).
Notice periods aren't fully enforceable but it would take you longer than six months for them to release all the paperwork for you to prove you are eligable to work for someone else (ie P45)
Suggestion from my lawyer was be nice and friendly take the approach that "I have decided that I don't want to be here any more............I doubt that you'd want me around knowing that I don't, therefore is there anything specific you wish me to do before I go?
Their requests of you must be contained within you job description and be reasonable.
My understanding is;
Even if not signed contract as previous "part performance" applies (ie you agree to part of it (pay, hours, turning up etc etc, therefore by default you agree to all of it).
Notice periods aren't fully enforceable but it would take you longer than six months for them to release all the paperwork for you to prove you are eligable to work for someone else (ie P45)
Suggestion from my lawyer was be nice and friendly take the approach that "I have decided that I don't want to be here any more............I doubt that you'd want me around knowing that I don't, therefore is there anything specific you wish me to do before I go?
Their requests of you must be contained within you job description and be reasonable.
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