Quick one on employment law if I may?

[AB]

Here's a situation that I need some advice on. I suggested I would throw it to the collective PH brain, as you guys tend to be better than Google.

Miss AB starts work with a company, terms were that she was on probation for 3 months prior to beginning 'properly'.

9 months have passed and she has never signed a formal letter of employment but has been working as a permanent member of the team. Would appear to be an oversight, one she never formally rectified.

She has been offered another role elsewhere.

So when she hands her notice in next week, from what I can gather she will have to (legally) be treated as a 'proper' employee i.e. she will have a months notice period as per contract she signed stating this was the case after her probation period.

I doubt very much that her current employer will want her hanging around for the month, she won't have much in the way of handover to do as it was a sales job and wasn't much on the pipeline other than what she was working on with her director.

She said she is happy to walk away without working the month and therefore forfeiting her months pay. I suggested that she could call their bluff and imply that she is happy to work her months notice - leaving the ball in their court as to the next move. They can either say no, go away, gardening leave so to speak OR say yes we want you to finish your month... at which point she can say actually, no thanks and walk away without pay?

Is that how it works? I honestly have no clue in these matters so any advice is as always gratefully received.

Cheers

[missdiane]

Did she have a contract at the start, as far as I know- which may not be much, the 3 months probationary is pretty common on new starters a good get out clause for the employer should they turn out to be a bad choice.
The contract usually just rolls over

I would also expect it is still a binding contract and she would be in breach of contract if she did not work her months notice
But are they really going to take it further? It won't be worth their time and money

Edited by missdiane on Friday 29th January 19:13

[AB]

Thanks for the heads up.

Just to shed a bit more light on the subject, the wording in the contract is this;

Contract said:

3. Commencement of Employment
3.1 Your employment with the company will begin on 28/05/09
3.2 Your period of continuous employment will begin 28/05/09
3.3 Your employment is subject to a probationary period of 13 weeks. You should refer to your Employee Handbook (she was never given one) for further information about your probationary period.

10. Notice
10.1 If your employment continues after the end of your probationary period the period of notice to be given in writing by the company or by you to terminate your employment is: one months notice for the first four complete years of your employment and thereafter one additional week's notice for each further complete year of continuous service, to a maximum of twelve weeks notice after twelve years service.

So looking at the above, it looks like employment has continued at the end of the probationary period and from what I have seen elsewhere she will need to give one months notice.

So that aside, I presume if they dont want her in the office, they will need to pay her for the month? Hence the 'calling the bluff' aspect as I mentioned in my OP. Ideal situation is "No Miss AB, you arent required to work your months notice".

She won't be leaving on a bad note, she will be writing her letter of resignation thanking them for their employment and wishing them all the best, but simply stating that she is moving on etc.

Is there anything she has overlooked or should be doing further to this?

Edited by AB on Friday 29th January 19:21

[AB]

missdiane said:

But are they really going to take it further? It won't be worth their time and money

This bit worries me... because if she did?

[missdiane]

Oh sorry AB, I just know enough to get me by with my own employees, not au fait with the law

[wiggy001]

Just remember that while on gardening leave, she can still be asked to come into work at no/little notice, so she can't really start at the new company until she's actually left the company. They also will not send her a P45 until the end of her contract either.

[Swilly]

Why doesn't she just go and speak to the company, explain her position that a new opportunity has arisen that she is going to take, she has had a great time at the present company etc etc

Why all the 'call their bluff' stuff?

Is she a professional or a child ?

[AB]

Company saw no advantage to her staying, asked her to leave right away but needed it in writing that she was waiving her notice period. A bit of bargaining went on and she got 2 weeks payment in lieu of notice. Result on that I think.

They will be paying it in such a way as tax will not be due on it.

1 week off before next job. Everyone's a winner.

[2 sMoKiN bArReLs]

..last thing you need is to keep an (unwilling) employee tied in by whatever means