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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47388
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, May I explain my situation. I resigned from my job two

Resolved Question:

Hi, May I explain my situation.
I resigned from my job two days ago in writing with 12 week notice period.
Last night the employer wrote to me accepting my resignation and advising that my last day at work would be today. They did not require me to work my notice and will pay 12 weeks in lieu of notice. I went to work today and accepted this verbally. Later today the employer phoned to say they had decided to rescind the notice payment and require me to work it. can you help please?
James
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. Does your contract say you can be paid on lieu of notice?
Customer:

Yes it does

Customer:

I see you are now offline

Ben Jones :

Hi, sorry my connection dropped earlier. I assume you want your employment to end now rather than you being required to work your notice period?

Customer:

Yes I do . I said to the employer this morning it was sad that they had decided I would not work my notice but that is their decision and so be it.

Ben Jones :

If the employer had a payment in lieu of notice clause in your contract then they could decide to exercise that and require you to leave earlier than your full notice period. The situation in your case is that they decided this is what they wanted to do and advised you of this, something which you subsequently confirmed verbally. This can still count as a formal acceptance, unless there was a specific requirement for you to accept it in writing, which does not appear to be the case.

The issue is that there is no specific law or case law that deals with the issue of the employer then going back on their decision and requiring you to work your notice period. You could claim that they have now gone back on a contractual promise and that their actions amount to a breach of contract but there is also a possibility that because your employment had not yet terminated and you were still employed by them at the time, they could change their mind and require you to work your notice period which you would be contractually obliged to do. If you now refuse to do so then it could amount to insubordination or breach of contract so they could try and refuse to pay you for the remainder of the notice period. That would then entitle you to make a claim for breach of contract but you would need to show that there was an actual breach which as mentioned is not something there a specific precedent on. So it would be risky.

I suggest you still try and resolve tis with them, reminding them that you were officially told they were exercising their payment in lieu of notice clause and that they should stick to what they decided. You could even consider raising a grievance over that. However, if they refuse and they require you to work that notice period you would either have to do so or refuse and then pursue a claim against them, although it would be with the associated risks I mentioned above.

Customer:

So it seems the advantage is with the employer. If I had said I wanted to withdraw my resignation they could refuse!

Customer:

But they can break a written agreement

Ben Jones :

they could indeed, although that is different - a resignation is legally binding once submitted and the employer cannot refuse to accept it, or allow you to retract it once submitted. I did not say that they cannot break a written agreement but this was an optional clause they could decide to exercise so it could be changed - as mentioned you could challenge it but there is no clear and definitive position that would guarantee you succeed against them if challenged

Customer:

So a cleft stick then. I have said goodbye to everyone

Ben Jones :

I understand that morally that may be incorrect but it is not necesarily unlawful and it is still best resolved directly with the employer rather than through a legal route

Customer:

This they will not agree of course as it is in purely their interest to Do this andf if I do not turn up for work on Monday ...rt

Ben Jones :

if you do not turn up then as mentioned they could treat this as insubordination or unauthorised absence from work, it could result in them seeking to dismiss you and if that happens then you can challenge them but as mentioned there is no guarantee of success as it is not a clear cut situation that you can definitely pursue with guaranteed success

Customer:

Ok thanks... so much for justice

Ben Jones :

sadly in law there will often be two parties that want a completely different outcome and sometimes one will be in a better position than the other, or there will simply be an unknown outcome based on what a court decides and in this case this is where you will stand hence why it would be an inherent risk in any event...you could win but there is no guarantee

Customer:

Ok understood .. I would be taking a big gamble with no clear case

Ben Jones :

indeed, although it is not a complete write off of course

Customer:

excepting if I lose of course which I could not afford to do. They have all the legal armoury

Ben Jones :

if you lose then you will not be responsible for their legal costs as it would be in the small claims court so you will just walk away with nothing

Customer:

But my choices are 1 Go to work and they pay me. 2. Don't go too work and risk dismissal Hobson's choice

Ben Jones :

yes, although with the second choice you could still pursue them for the notice period you are owed

Customer:

Thanks for your time.

Ben Jones :

you are welcome, all the best

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