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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46224
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have a very bad situation at work, where I had to resign

Resolved Question:

I have a very bad situation at work, where I had to resign after having worked there for 13 months in a management role.
My contractual notice period is 3 months, but I resigned on 19 May to 31 August (thus giving 3.5 months' notice), and my employer now insists that he wants to terminate my contract to 19 August, which has a number of serious implications (holiday pay, pay for 19-31 August). Can they terminate my contract on 19 May?
Also, merit pay is part of my contract, and it is always given to staff in July. I resigned because two members of staff submitted a joint complaint about me, which however is unsubstantiated. I thought that even if I prove that this is the case (that their claims are untrue), the relationships will be affected forever and therefore I decided to resign instead. Now, my boss says he will pay me the minimum amount of merit pay because of the complaint, which is really unfair. I wouldn't have taken the job if not for merit pay because the salary was too low, and last year I was awarded the highest possible award (pro rata), and this year there were no issues until that complaints which caused my resignation, and actually I delivered a number of very strong projects and had a good appraisal.
I am very upset about the situation and don't know what to do re: my merit pay and my notice period?
Thank you ever so much for your help
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Was the longer notice period initially accepted?
Customer: replied 1 year ago.

Hi Ben,

No, I emailed by letter of resignation together with a grievance initiation letter against my line manager (the two members of staff who submitted a complaint against me have been treating me unfairly for the last 6 months, and he did nothing about it although I asked for his support + in the meeting he arranged to discuss the complaint, he suggested I resign because he said the situation could not be fixed although I offered to do whatever it takes to resolve the situation) and was immediately sent on 'gardening leave'. The next day he emailed to state that my contract will be terminated to 18 August not 31 August, and now he suggests to terminate it to 31 May and to pay me my salary for 01/06-18/08 in lieu as a one-off payment.

Expert:  Ben Jones replied 1 year ago.
How are the merit payments calculated what does the contract say about this?
Customer: replied 1 year ago.

they are not included in the contract, but the merit pay is mentioned in my offer letter, and also when I was employed I initially rejected their offer because I couldn't afford to take a pay cut, but then he promised me the merit pay, which together with my base salary brought the level of pay to an acceptable level.

the merit pay is calculated based on the school year 01 September - 31 August and there are four merit pay steps: £2.5K, £5K, £7.5K and £9K, and only people who do absolutely nothing get £2.5K (that's what he is proposing to give me for the year finishing on 31 August 2015 now). Each step is described in the merit pay framework, with criteria outlined, and it is my boss who decides on my level of merit pay.

Last year I got £7.5K pro-rate (because I had just started in April), and this year everything was going really well and I was hoping for a £9K merit pay or alternatively was confident I would get £7.5K until this happened

Expert:  Ben Jones replied 1 year ago.
From a legal perspective I am afraid the employer has not done anything wrong here in relation to the notice period. You are contractually obliged to give a specific notice period (3 months in this case) and that is that you would be expected to submit if you were resigning. You are free to propose a longer notice period but that would only become binding if the employer has accepted it. Not indicating that they oppose to it is not the same as an acceptance – they must have actually confirmed that they accept the longer notice period. This did not happen in this case – initially they did not say anything about acceptance and eventually they rejected it – as there was never an acceptance the employer is entirely free to reject your proposal and hold you to your contracted notice period.
Employees cannot dictate the notice period they give an employer, otherwise they could choose whatever period they want an hold the employer to it – that is not what the law has intended. You have a contracted notice period and that is what applies – if you want a longer or shorter notice period that can only happen with the employer’s consent. If they do not give consent then your proposal will be rejected an you will be bound by your contracted notice period. Also if the contract says that you can be paid in lieu of notice they can terminate it earlier and pay you for the remainder of the notice period.
The merit payment can be viewed as a type of bonus. When it comes to workplace bonuses, there are two main types: contractual or discretionary. There can be an overlap where a contractual term gives the employer discretion over payment, or there can also be further sub-categories, for example performance-related bonuses or bonuses payable subject to other conditions. What is certain is that the legal issue of bonus eligibility is a rather complex matter and would mainly be subject to interpretation of individual circumstances and the wording of the clauses in question.
A common example is a bonus clause which is contractual but which gives the employer the discretion to decide whether it would be payable or not. This is also a situation which would cause most disputes between employee and employer. Whilst at first glance this may give the employer full discretion as to whether the bonus should be paid or not, this will not always be the case.
If the eligibility to a bonus is based on performance criteria then first of all if an employer is required to form an opinion of an employee's performance they must do so in good faith and be fair. Any other performance criteria would usually be determined based on qualitative data. Assuming the performance conditions have been met, an employer will rarely be able to refuse payment of the bonus as doing so would be acting in bad faith and considered unfair. So this is an example where the employer's discretion is removed once the relevant eligibility conditions have been satisfied.
It follows that even though a bonus clause may be described as being entirely at the employer's discretion, there are circumstances, mainly in performance-based eligibility, where this discretion is removed and the bonus would automatically become payable if the eligibility criteria have been met.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.

Hi Ben,

Thank you for your guidance. Can I please clarify with regard to my merit based pay, can I contest it or not?

Also, with regard to my holiday pay - if I remain on gardening leave until the end of my notice period (18 August) but I had 5 days booked off in July, my boss insists he will not pay me for the 5 days because I would effectively be taking them as I already booked them, is that true? And if they pay me in lieu now and terminate my contract to end of May, they don't have to pay me for my holiday entitlement 01 June - 18 August?

Expert:  Ben Jones replied 1 year ago.
Does your contract state you can be paid in lieu of notice?
Customer: replied 1 year ago.

yes it does. so they emailed me two options - to terminate to 31 May and to terminate to 19 August. but the option to terminate to 31 May only includes pro rate basic merit pay to 31 May and the same with holiday - only pro rate untaken holiday to 31 May, so I will be losing out on holiday pay & merit pay for 01 June - 18 August?

Expert:  Ben Jones replied 1 year ago.
As there is such a clause they can terminate you early and do not have to pay you for holidays between now and the end of the notice period. As to the merit pay irbid potentially possible to pursue this as mentioned earlier due to the implied term of trust and confidence and whilst you can aide this with the employer if they refuse to pay you then you can only go to court to challenge it and it will always be uncertain as to what the outcome would be
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46224
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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