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If there is a written contract in place and it contains a specific clause detailing the notice period an employee is supposed to give if they wanted to leave their employment, they will be contractually bound by it. Therefore, if the employee fails to honour this notice period then they will be acting in breach of contract. However, if the specific clause containing the notice period was objected at the start and nothing was done to resolve this, then it is less likely the employer can enforce it.
If the employee leaves in breach of contract, the employer then has the option of suing the employee to seek compensation for damages resulting from their breach. However, in reality such claims are very rarely made. This is mainly due to the costs and time involved, also the relatively small damages that can be recovered. So whilst there is no way of predicting whether the employer will take this any further or not, chances are that they will not. A more likely outcome is that the employer refuses to provide a reference in the future or if they do, it could mention that the employee had breached their contract.
It is therefore best to try and negotiate a mutually acceptable notice period that would suit both parties. However, if that is not possible and there is a pressing need to leave early, that is still a possibility, subject to the risks identified above, remembering that the employer has to show actual losses have been incurred before they can sue.
Thanks Ben that's very clear. One other part of the situation is she resigned a few months ago with the offer of another job but was convinced to stay and offered more money. They are now saying that accepting the increase was tacit acceptance of the contract although it was not mentioned verbally or in the email which confirmed the higher salary it doesn't sound as though this strengthens their position.
Not really, did they offer her a new contract to reflect the changes?
They just sent an email - the contract was not mentioned
yes it is unlikely this would have made her accept the old contract, if the term was still under dispute they should have offered her a new contract with the changes, including the notice period and asked her to accept it as a whole
Thank you. It appears that they are now trying to work with her to enable her to leave when she needs to to start her new job. Is there anything she needs to be careful to say not say, do not do? There's a risk that they will string it out until the last moment until she knows whether they are still requiring 2 months.
if they may agree to let her leave early then to try and minimise any ill feelings and a potential for them to take this further just to prove a point, she should work with them and be cooperative. However, if they are stalling or trying to be difficult, she can just leave anyway and take the risk as specified above, which would be reasonably low
Ben - I appreciate your help today. Thank you
Sorry - One more thing - what happens if they withhold her pay from the final four weeks if she leaves after 4 weeks?
they cannot do so unless they had a specific contractual right or a written agreement allowing them to do so as it would otherwise amount to unlawful deduction of wages which she can challenge
What would she have to do to challenge it?
if needed she can take the matter to the employment tribunal
Ok - thanks again. This is a great service
you are most welcome and all the best