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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46792
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My girlfriend works as a Therapist in a private school. She

Resolved Question:

My girlfriend works as a Therapist in a private school. She handed in her notice in May such that to the start of the next academic year it would have been 13-weeks.

She asked for clarity on whether she gets paid for her notice period during the summer months. The school advised that they have no objections with her leaving but as she did not provide a full terms notice she will not get paid during the summer.

The school up until November 2013 did not issue contracts to employees. They created a template that was up for discussion but my girlfriend did not sign it as she had concerns with some of the terms and also found them contradictory to what was in fact applied practise (i.e. they were entitled to 27-days annual leave per contract but when questioned in an email the director assured her that she gets paid over the course of the 12-weeks they have off a year). She asked for a formal review, which was promised in an email, but was never provided. In May they were asked to sign an acknowledgement of the contract that she did not sign. They state that as she provided no objections it implied she accepted the terms of the contract.

In fact no objection was provided to her notice until she requested clarity on whether she gets paid during the summer months. Although she has to provide a full terms notice herself is on a two week notice.

When issued with the contract in November, she was also given a hand book which stated that 1 term had to be given or there would be no pay. However, when this notice period was questioned in an email, it was never clarified but instead she was told not to worry and that any other questions would be answered during appraisals- which never took place.

Questions:

-Are such opposing differences in notice periods legal? (2 weeks v 18)
-Can she claim payment of her notice period?
-Can they legally claim she tacitly approved the terms when she refused to sign any agreement/contract or acknowledgement?
-Can she sue them/take them to tribunal for loss of earnings/unfair dismissal as they did not issue her with a contract at the start of her employment (or anyone else in that school) and it is established practise to pay staff during the summer months?

Thank you,
John.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Can you please clarify that the document she was issued with specifically mentioned she had to give a term's notice and that failure to do so would mean she does not get paid for the summer months?

Customer:

The hand book said that failure to give the required period of notice would result in forfeit of accrued holiday pay and the contract, issued on the same day, said that 1 term had to be given- but did not mention that she would not be paid if this notice was not given. nothing was ever signed and in an email she objected to several points from the contract, including being unclear about the notice period (1 term vs 2 weeks from the employer).

Customer:

actualy, the contract does also mention forfeit of pay

Ben Jones :

Was it stated anywhere that the handbook formed part of the contract or that it had contractually binding effect?

Customer:

the contract makes multiple references to the handbook

Customer:

yes it does say it forms part of the contract

Ben Jones :

ok thanks, ***** ***** provide my full response first thing in the morning. I am due to go offline shortly and one of the resources I need is also down overnight so won't be available until the morning?

Customer:

yes thats fine. thanks.

Ben Jones :

Good morning, thanks for your patience. It appears that the contract and the handbook she was issued with, which formed part of the contract, contained provisions for the notice she had to give ion leaving and for any repercussions of her not giving that notice period. It is important to note that it is not legally required for the notice periods the employer has to give and the employee has to give to be the same or similar – there could be a difference in those and it is entirely legal for the employee to have to give a longer notice period than what they are due by the employer.


 


She was issued with these documents at the beginning of her employment. She may not have directly accepted these, but the employer is correct that unless she had specifically challenged any terms within them and just started working under the remaining conditions in these documents, she would have implied her acceptance to them. So even if she was not sure about some of the contents, she must have formally challenged these and specified she does not accept them to retain any rights in that respect. However, if she did not do so and started working under the terms then an implied acceptance would most likely have been in place.


 


The next issue is whether the contract contained a provision allowing her to be paid for the summer period in normal circumstances. Others may have been paid in the past but there must have been a specific clause or formal indication that the same would apply to her for it to be effective,


 


Next, we need to consider whether the employer is able to withhold these payments from her in accordance with the contractual documents she is likely to have accepted through the implied acceptance I mentioned above. Recent case law has confirmed that an employer can deduct the pay an employee would have received from the remainder of their notice period if they did not give the correct notice period and left early. However, that would only be justifiable if the employer had to recruit a replacement at short notice and it would be expensive to do so, otherwise it can be seen as a penalty clause and be unenforceable. Therefore, the enforceability of such clauses would depend on the individual circumstances and what losses the employer may have reasonably incurred from her actions. If no one was going to work through the summer months anyway and no replacement was necessary, then it may be difficult for the employer to justify these deductions. Also they cannot withhold her holiday pay that has been accrued to date, this is a legal entitlement and the employer cannot avoid paying that regardless of whether the employee breached their contract.


 


Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

yes it does. thank you for your help.

Ben Jones :

You are most welcome, all the best

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46792
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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