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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I recently contacted you about an employment question, the

Resolved Question:

I recently contacted you about an employment question, the short version is I felt that my employers of 11 years were using an argument in work with a colleague to terminate my contract.

I think the answers I got was from a Ben Jones.

I have a new question, I handed a month's notice because of my perceptions on the 27th January 2014, I realised after posting that because of my length of service (11 years) I should have perhaps given 3 months notice (although it does state in company policies that this is usually only applied to management, which I certainly am not. I am a lowest grade admin asst). I wrote again asking for clarification which prompted a letter from the area manager asking for a meeting to "encourage me back to work", (to date I have been suspended on full pay for 18 weeks due to the argument, while they investigate what I have admitted too). At the meeting she refused to accept my notice and thanked me for attending that was it. I received a summary of the meeting to say that I had agreed to withdraw my notice, those words never passed my lips. I have been looking for alternative employment and have found a job, Through the staff side representative I asked what would be the minimum amount of time to leave my present post so that I can take up the post offered. It has been reported to me that I have to put it in writing again, giving the correct amount of notice "as per my contract". Which could be another 3 months

My question is as I have already given notice and never formally withdrawn it. what would be the possible ramifications of just giving formal notice of leaving and starting my new post
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.

Ben Jones :

Many thanks for your patience. 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.


 


If no contractual notice period clause exists, an employee who has been continuously employed for at least one month is required to give a minimum notice period of one week in order to terminate their employment.


 


So it really depends on whether you had a specific notice to give under contract or not. The employer does not have the legal option of refusing to accept your notice – once a notice is handed in it is valid and cannot be rejected by the employer, meaning your employment would terminate once your notice expires. If you did have a 3 month contractual notice period to give and have already served nearly 2 months of it, you could just serve the remaining month and know you have not done anything wrong. However, if you had to leave earlier than that, you can still do so subject to the risks identified above. However, if there was no specific contractual period to give, you only have to give a week and as you have already worked that since handing in your notice you can leave at any time

Customer:

Hi

Customer:

I was thinking of giving 1 month, I have 3 weeks holidays which I have not been able to take and I understand that this can be offset to any notice, my holiday year ends on the 31st March and company policy states that at best we can only carry over 5 days, but I was thinking that I could give 1 month, consisting of 3 weeks holiday and 1 weeks "work" which I haven't actually done for 18 weeks now. If I wrote and stated this being my intention and giving a firm leaving date would I be ok to stick to this , bearing i mind I am nearly at the end of my notice period anyway

Customer:

they won't "let" me leave as I stated that I felt I was being forced to leave due to bullying & harressment. in my original notice letter

Ben Jones :

it is impossible for the employer to keep you in your job, regardless of the circumstances, so saying they won't let you leave means nothing legally. Whilst you can offset holidays against your notice period, the employer can reject that request but if they do so they should look at paying you for any outstanding leave at the time your employment terminates. Also you have the right to leave with immediate effect if necessary by stating you are treating yourself as being constructively dismissed due to the bullying and harassment - it means the contract you were working under has been breached and you leave immediately as you no loner have any applicable notice period under it

Customer:

so as I have already formally stated that I feel I have been bullied and haressed and forced to leave (whether it is legally true or not) then a notice no longer applies?

Ben Jones :

yes this is called constructive dismissal, it is a breach of contract by the employer which makes the who, contract void and wit it, all the term within it including the notice period you have to give

Customer:

ok sorry to be a bit dense, but even if it is not legally provable, I want to be sure as this could solve all my problems.

Ben Jones :

yes bullying and harassment could certainly amount to constructive dismissal, it is a common reason

Customer:

Right, thanks for all your info, so should I write stating that as i feel I have been constructively dismissed due to bullying and harressment I am leaving immediately, or words to that effect?

Ben Jones :

yes exactly, and state that your contract has been breached as a result so all its terms now have become void

Customer:

Thanks you have taken a load off my mind

Ben Jones :

you are most welcome, all the best

Customer:

Ta

Ben Jones :

Just before you go could you please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:


 


 


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