Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How soon do you wish to leave?I am just travelling so will respond when I have a permanent signal early this evening, thanks
Many thanks for your patience. Not sure if you misunderstood my earlier query but I was wondering how soon would you like to leave the current employer?
though preferably in mutual agreement
have you had 'usual' hours since you started working there?
7am to 7pm on average
but nowehere specified in my contract
How long have you done those hours for?
since i started on june 19
so around 9 months
ok thanks, XXXXX XXXXX to finalise my advice now
Whilst the contract may have been described as an ‘as needed basis’, there could be an argument that the usual hours you have worked have become the implied contractual terms through custom ad practice if they have been consistently applied. This would mean they become part of the contract even if they are not written anywhere. Even if that was not the case I would not say this contract is unlawful or unfair – the employer could decide what notice periods would apply to either party even if they do not match or do not reflect what other employees may be subject to.
Even if this was a zero hours contract, it can still be subject to a notice period – a zero hours contract is not necessarily a casual contract where no mutuality f obligations exist, for example if you are constantly offered work and accept it then it would be implied there was a mutuality and it could not be a casual contract and it can be subject to notice periods under a clause of a contract.
So 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. 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.
I did not work for 3 weeks in December, does that change anything?
that may help you but this is all only going to be relevant if the employer makes a claim for breach of contract against you, which is unlikely to be honest
im doing some reading myself right now and came across a sentence saying "If the employer wishes the individual to be obliged to accept work if offered, it must say so in the contract"
all it says is "as required"
would this immediately imply "obligation" or would there need to be a separate sentence/clause to outline this?
no, as mentioned contractual terms can be implied through the actions of the parties, so you do not need such specific wording if over time it is clear that work was offered and readily accepted
so basically if ive accepted in the past, this obliges for the future?
it would certainly raise an argument that such terms were implied - but this area of the law is never 100% certain]
so i could get away with that
also having refused work in December for 3 weeks might help this
yes, but as mentioned all of these arguments only become relevant if the employer sues you and then you have to defend the claim
im meeting with the company lawyer tomorrow, so am just trying to see where i stand
that should hopefully help with your arguments, a lot will become clearer also once you speak to them and see where they stand
ok one last question
you've been very helpful so far, thank you
so assuming i breach my contract, and i begin working for my new employer
can my old employer (with whom i have breached the contract) in any way cause me to lose my job?
and if so, how?
well as mentioned they could contact them and state that you had left in breach of contract - that in itself would not necessarily have any effect but as you can imagine it then all depends on the new employer - some would not give it a second thought and ignore it, others may see it as an issue and consider you a risk but which way it would go, no one can predict
ok - so they couldnt get a court injuction or something to stop me from working there altogether?
it would be at my new employer's discretion
if i understood that correctly
injunctions are only usually available if you have a restrictive covenant preventing you from working for someone and you have breached that
one very very very last question
it's been excellent so far
in the USA there is a provision that states:
A Casual employee may be hired to work occasional and irregular hours on an as-needed basis or to provide supplemental help during periods of unusual circumstances. Otherwise, the position should be filled as a regular or term appointment.
Casual employees may not work in excess of 1,000 hours in any 12-month period.
Termination of Employment
Due to the nature of the appointment, the employment of a Casual employee may be terminated at any time
When reaching 1,000 hours of work in a 12-month period, the Casual appointment must be terminated
i understand there are some similarities between the USA and UK legal systems, is there anything similar here?
the positions ive been filling is in finance, it's 7 to 7 everyday, so 60 hours a week + the occasional weekend... ive been on the job for 37 weeks now, which would equate to over >2000 hours of work
nothing similar to the above, here there is a limit of 48 hours average working week in general for employees but nothing to state the contract must b terminated after a set number of hours
do the 48 hours also apply to zero hour contracts?
i appreciate "zero hours" means no minimum, but does it also imply a cap?
yes, to any workers, but it is an average taken over the last 17 weeks or if less than that since the start of employment - the start date
so you can have single weeks of more than that if the average is kept below
wow, so even with the 17 week average (taking 3 weeks out in December) I arrive at 49 hours a week
you could argue that the employer has breached the working time limits and also the implied term of trust and confidence by doing that and you could then say you are treating yourself as constructively dismissed and leave with immediate effect (it means the employer has breached the contract first, making it void, and also voiding any notice clauses in it)
im also currently going through the referencing process with my new employer
and have indicated that i am still employed with my old employer
if the referencing agency contacts my current employer, what is my current employer allowed to say?
assuming i am still employed at the time of the external referencing agency contacting my current employer
the truth basically - anything that is factually correct about your employment with them
so only that i am employed?
not that i am in discussions about potentially breaching the contract?
well it is the truth but usually they would only say so once it has happened as it can be misleading if you do not proceed with it
what if i never, in whichever manner or fashion, intimated that i might do so, but it is merely them inferring so from my behaviour?
would that still construe as the "truth"
well then it is rather risky for them to mention it, I doubt they would go into that much detail
you've been extremely helpful
There is one clause in my contract that reads as follows:
"The duration of your restricted covenant period shall be three months, and not as otherwise set out in the Handbook. Accordingly the terms of the Handbook shall be deemed to have been amended accordingly in your case"
does that imply I cant work for anyone else?
not really, they can not just stop you from working for anyone, whatever the wording - only if you are going to encroach on legitimate business interests like by using confidential information, trade secrets, etc
so if the business of my new employer does not conflict with the interests of my current employer there is no breach
very unlikely they can prevent you from working with them, it will be a restraint of trade
now that's really all, i hope
thanks a lot
you've been a tremendous help
i feel more reasured
can i just ask, are you a professional solicitor?
yes of course, qualified to advise in England
will pay you your 28 pounds now
have a great evening
You are most welcome. Feel free to bookmark my profile for future help:
how quickly are you available in general?
just in case i may need advice again further down this week?
I am online more or less every day - if you ensure you start a question with 'for Ben Jones' then it will get directed at me
ill keep that in mind
and all the best