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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47340
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I've just resigned from my job and my employer has not taken

Customer Question

I've just resigned from my job and my employer has not taken it well. They have said I can work my 3 month notice and get full pay of base and commission or leave at the end of Feb and get paid up to my last day. Am i not still entitled to the 3 months of basic pay of my notice period?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Remus2004 replied 1 year ago.
What does your contract say about this?
Customer: replied 1 year ago.
16.2 Payment in lieu of noticeOn the service of notice to terminate your employment by wither party or at any time during such notice, the Company may (but will not be obliged to) terminate your employment with immediate effect notifying you in writing that your employment is being terminated under clause 16.2 and undertaking to pay you a sum equivalent to your basic salary exclusive of any contractual bonus or benefit in kind foir the unexpired portion of your contractual notice entitlement. The Company will pay the sum due as salary in lieu of notice, subject to deduction of tax and national insurance contributions at source.The Email I got from my Boss said :-Thanks Craig for the conversation.As matters currently stand, we would like you to work your full notice period (3 months). Please note that we would expect you to work and fulfil your role responsibilities during this whole period and you would not be on garden leave. On this basis, you would receive payment per the terms of your contract with us.I understand further from our discussion that you may wish to suggest that we release you early from your contractual notice period. We would be open to consider such release, on the understanding that you would also release the company from paying you for any period where you are not working (garden leave is not considered working in this context). We would therefore expect you to provide a full handover before you leave. I look forward to your response, in line with our conversation, as to your proposed final working day with the company. We will then consider your proposal and let you know our response.
Expert:  Ben Jones replied 1 year ago.
Hello i have been asked to look at this as i am an employment lawyer. What has happened he is that you have resigned and are ready and willing to serve your notice period. If your employer allows you to do this then you will be paid as normal during rhat time. if they want to terminate your employment early then they will have to pay you in lieu of notice, meaning you must get payment for the full notice period, or any part left over. The employer cannot force you to leave early and not pay you in loeu of notice. If they do that it will amount to wrongful dismissal, which is basically a dismissal in breach of contract. You can refuse to leave early and state that you are willing to continue working your full notice period. If they want to terminate you early then they will have to pay you in lieu of notice. On the other hand if you ar the one who wants to leave early, you are not due payment in lieu of notice. You must be willing to work your notice period and be terminated early by the employer to be entitled to that. This is your basic legal position. I have more detailed advice for you in terms of the options you have if they fail to pay you the notice period when due, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47340
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
Many thanks. If the employer fails to pay you the notice period due under the circumstances mentioned earlier, you can treat this as wrongful dismissal or a breach of contract. In order to try and resolve this, the employer should be contacted in writing, advised that this is being treated as either of these two claims and ask them to pay back the money within 7 days. Advise them that if they fail to pay the money that is owed, legal proceedings could follow. If the employer does not return the money as requested, the following options are available:1. Employment Tribunal – this is where you make a wrongful dismissal claim. The time limit to claim is only 3 months from the date the payment was due. To make the claim, form ET1 needs to be completed and submitted - you can find it here: https://www.employmenttribunals.service.gov.uk/employment-tribunals2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years and is usually used if you are out of time to claim in the Tribunal. The claim can be made online by going to: ***** ***** by warning the employer you are aware of your rights and are not going to hesitate taking further action they will be prompted to reconsider their position and work towards resolving this.
Customer: replied 1 year ago.
Thanks Ben.I was originally open to an early mutual termination of the contract and suggested end of March - no discussion on contractual payments - but I believe they are being emotional and giving me two options - the one to stay and serve my notice being one they would rather I didn't take but believing I wouldn't go for that. I will go back and state my position that they either release me at the end of February with full Basic Pay to the end of my notice period or I will work the 3 months. It could back-fire and they ask me to do that but I will have very little to do and would be bored rigid. I would like to think they will see sense and pay me what they are contractually obliged to do but I will be taking a big risk. Thanks for your help.
Expert:  Ben Jones replied 1 year ago.
Sometimes you have to take risks but in this case it may have to be the case to ensure you get paid what you are due. I would hope that they see sense too and recognise that a bored and unmotivated employee could have a wider detrimental impact on the business and it would be better to remove them rather than just leave them to prove a point.
Customer: replied 1 year ago.
Hi Ben,Sadly, they are not seeing sense - and seem to be getting more emotional - their response is below :-Craig,Thank you for your email and clarification.In terms of your final date of employment, the end of March is not going to be a workable option from Zebra's perspective.We would either expect you to work your entire notice period and contribute meaningfully throughout the three months. This would in all likelihood include your attendance at the Bourne End office during this time.Alternatively we would be open to considering a mutual release date immediately after a handover, within the next week to ten days.A leave date at the end of March, effectively the midpoint throughout your notice period, does not allow either for either of the above outcomes.If we do not hear from you in the next two days we will assume that you will work throughout your full notice period and will advise expectations in terms of objectives and schedule.Regards
Sarah
Expert:  Ben Jones replied 1 year ago.
They do not seem to understand that when you claim constructive dismissal you are leaving with immediate effect so no notice period applies. So I suggest you make that clear to them - remind them that you treating yourself as being constructively dismissed, the contract is considered void and with it any terms in relation to notice, etc.