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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45379
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was promoted and signed a new contract at work last year

Resolved Question:

I was promoted and signed a new contract at work last year in November.

if I want to leave I have to give 3 months notice. They have also included a clause in it saying I cannot resign prior to a certain date. The date they had in mind was 31.12.14, however when the contract was drafted and signed by both parties the date was put down as 31.12.13.
The job that I was offered is different in practice then in theory. When I agreed to take this promotion I requested to be involved in certain projects and that did not happen. I had no probation review or any appraisal for my last year's performance. I have been with this company since August 2012.
When I aproached my MD to tell him I want to leave, he told me he feels he is overpaying me, that I am not worth the money, however he will not allow me to leave when I want. According to him I can only go when he finds and if he finds a replacement.
I resigned with him on the 7th of April. I have another job and I can start there at the begining of June. If I leave, what are the chances that he can enforce that clause. Is it still valid considering they have typed the wrong date on the contract?
Please advise.

Thank you.

Kindest regards, XXXXX
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. I see you have approached ACAS, what did they say about this?

Customer:

They told me they cannot offer me legal advise on this matter

Ben Jones :

ok, well the fact that the wrong date was entered on the contract does not mean that it would be legally binding as it was written, especially if it can be shown that this was a genuine error and that both parties knew there was a different date that was actually supposed to apply.


 


As far as the clause itself is concerned, no one can actually physically force you to stay and continue working for the employer until the clause expires. If you want to leave then you may do so at any time. The issue is that you would potentially be acting in breach of contract if you do so and that would enable the employer to consider taking legal action to pursue you for any damages or losses incurred as a result of your breach. They can’t just penalise you or claim for costs that have not been incurred – they must show genuine and direct losses before they can claim. It could be that they have not suffered any or any that have been incurred are simply not high enough to justify taking legal action.


 


You also have an argument that you could try and use in your defence and that is known as constructive dismissal, where your employer has ac ted in breach of contract first and that has made the whole contract void, including the clause in question, which would allow you to leave without being bound by it. There must be a serious breach by the employer first though, so anything you can show that they have failed to adhere to under the original terms can be used and even if it was not serious enough at least it gives you some ammunition at this stage to argue your way out and hope they take this no further.

Customer:

Every attempt I made to improve the structure at work in a way that will allow me to concentrate on areas that I was interested in, to ensure that we are more efficient has been delayed or postponed on purpose. I have not been given any appraisal or any performance review for my new job. I was promised a bonus for my performance last year. The job in itself was described to me diffrently and I don't get to touch base with a few aspects of the job that were put in my job description. The only reason evry single idea I suggested has been delayed is because the company has hired a new regional manager who will come and look at the structure himself. That could mean that I can be demoted for what I know.

Ben Jones :

These are all arguments you can use in your defence but to be honest they would only become relevant if the employer decides to make a claim against you and you then have to defend yourself and justify your actions

Customer:

ok. I don't think he will waist his time to take me to court, because he is not going to suffer financilay if I go. I just wanted to know weather I could use all these points as a good reason for my resignation and to create the diea that I have a strong case should he decide to take me to court.

Ben Jones :

yes certainly - the key is did he breach the contract first and make it void as a result - if so, then the whole contract becomes invalid and takes away the remaining terms with it

Customer:

so I have to find a way to prove that he was in breach of contract. all the arguments that I raised above. Would they stand as reasons for him to be in breach of contract?

Ben Jones :

they certainly could, whilst only a court can decide that, I have seen similar things stand up in the past #

Customer:

I hope I don't go to court as it would be a hassle. I just want to ensure that in their eyes I have a strong reason to go that can potentially get them in toruble if they take me to court.

Ben Jones :

no one wants to go to court so I hope the employer would not do this either, he may threaten you as much as he wants but that means nothing until he has sued you and won

Customer:

the fact that he is hiring a far more qualified manager..who I my absence can manage the business is proof that he is not going to suffer financially. I have a succesion plan in place and based on his malicious claim that I am not worth the money I am assuming I will be saving him money rather than loose him any.

Ben Jones :

well I can't say whether that would happen or not as you can appreciate but he must be able to justify any losses he wishes to claim for so he needs to prove losses were suffered and he was unable to mitigate these

Customer:

Am I bound in any legal way to tell my cureent employer about my new employer. I am assuming he will want to know where I'm moving.

Ben Jones :

No you are not, that is your own business

Customer:

I want to leave in friendly terms and that was what I advised my employer on the 7th of April. If I need further assistance with this matter along the way. What is the best way to contact you?

Ben Jones :

you can start any new question with 'for Ben Jones' and it will get to me, I am on most days

Customer:

Thank you.

Ben Jones :

You are welcome, all the best for now

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45379
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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