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?
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).
actualy, the contract does also mention forfeit of pay
Was it stated anywhere that the handbook formed part of the contract or that it had contractually binding effect?
the contract makes multiple references to the handbook
yes it does say it forms part of the contract
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?
yes thats fine. thanks.
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
yes it does. thank you for your help.
You are most welcome, all the best