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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47421
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been in an employment since April with a company

Resolved Question:

Hi,
I have been in an employment since April with a company as a maintenance engineer. I signed my contract with them when I joined, but never got a copy of the contract. When they gave the contract to sign, I was already working for them and was standing on a ladder, so they just handed over to me to sign it, didn't had the time to read it through - which is all my fault, I know. I found a new job, which I would like to start on Monday, but when I informed the current company, they threatened me with legal actions stating that I have 3 months notice period to give. I cannot check if this is indeed true, because as I said, I do not have a copy of the contract. They said they will loose their client if I leave the company and that they will take this to the court. What are my chances? I don't want to go to court with them. Someone told me that 3 months notice period is usually given to people working on higher levels - as management etc, I am neither of these. Also, when I joined they asked me to be flexible and do overtime, which I did, but when it came to payment, they said this cannot be reimbursed as they are not paying any overtime, so basically I worked several hours per month for them for free. Once they gave me 75£ in an envelope for a work that I did during the weekend - I doubt they included this on my monthly payslip. Another thing which I can bring against them is, that they gave me a credit card for pass-through costs (fuel for the company van that I used and material required for the daily work). I always gave them the receipts for these costs. The thing is the card is on the name of a person, who left the company long ago.
I would be more than grateful if you could advise me how to proceed? I am afraid to leave them and start the new job on next Monday, but this way I might loose the new job as well, so I am pretty much stuck.
Thank you in advance!
Kind regards,
Z.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Do you remember seeing the notice period at all?
Customer: replied 1 year ago.

No, I haven't seen the notice period. As far as I remember there was a 2 weeks notice listed, but maybe that was referring to the probation period

Customer: replied 1 year ago.

as I stated before, I haven't received a copy of the contract ever since, so at this stage I cannot even check and review it now.

Expert:  Ben Jones replied 1 year ago.
Generally if there is a written contract in place and it contains a specific clause detailing the notice period an employee is supposed to give if they wanted to leave their employment, they will be contractually bound by it. Whilst 3 month notice periods would usually be used for more senior personnel it does not mean you cannot be bound by one too if it had been specifically agreed in your contract. Therefore, if the employee fails to honour this notice period then they will be acting in breach of contract. The employer then has the option of suing the employee to seek compensation for damages resulting from their breach. However, in reality such claims are very rarely made. This is mainly due to the costs and time involved, also the relatively small damages that can be recovered. Also the employer has to show that actual losses have been incurred and often that is not easy to do. So whilst there is no way of predicting whether the employer will take this any further or not, chances are that they will not. A more likely outcome is that the employer refuses to provide a reference in the future or if they do, it could mention that the employee had breached their contract.
It is therefore best to try and negotiate a mutually acceptable notice period that would suit both parties. However, if that is not possible and there is a pressing need to leave early, that is still a possibility, subject to the risks identified above.
Finally, there are circumstances when an employee may be entitled to leave with immediate effect and without honouring their notice period. This occurs when an employer has committed a serious breach of contract first. The whole contract, including the notice periods, then becomes immediately void and the employee would be treated as being 'constructively dismissed'. So if there are reasons to believe the employer has acted in breach of contract, whether a breach of an express contractual term, or other breaches such as bullying, exposing the employee to unreasonable stress, discriminating against them, etc this reason can be relied on in order to leave with immediate effect. In your case you could try and use the reasons you mentioned to try and twist their arm in the negotiations.
So apart from working the notice period there is nothing that would guarantee they do not sue you – they can always do that if they wanted to but if it goes that far then the above principles are what a court would look at when deciding. It is impossible to say what your chances are because it would depend on the judge on the day and how they see things so the outcome could vary on a claim by claim basis and there is always a risk in litigation for all involved.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.

Many thanks for your reply! Would you advise to request a copy of the contract at this stage....first of all to see and review what the terms are more precisely and also would you recommend to ask an acknowledgement of receipt to be signed off by both parties to ensure that we have evidence that the copy of the contract has been given to me only now. Isn't the fact that they haven't provided me a copy of the contract already a breach in the agreement in itself?

Thank you!

Expert:  Ben Jones replied 1 year ago.
You have the right to receive a copy of the contract. You have this entitlement under the Data Protection Act 1998 as it amounts to personal data about you and you can make a subject access request for them to disclose it to you. You may struggle to get an acknowledgement of receipt and cannot force them to sign one but worth trying. As to the time it has taken, they have a duty to issue you with a written statement of employment particulars within 2 months of you starting your job - it is not a contract but very similar and contains all main terms and conditions you work under. However you cannot make any claim against them for their failure to issue that on time so just remind them that they have to.
If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
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