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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My partner gave his 1 month's notice to his hotel employer

Customer Question

My partner gave his 1 month's notice to his hotel employer on 8/7/16 and then found out his holiday he'd had booked for 5months for a family event would not be honoured if he gave his notice so he agreed to extend his notice period to 20/8/16.
On 10/8/16 he badly injured his foot and was signed off work for two weeks meaning he couldn't work his notice. He met with hr and general manager and at no point did they tell him it would affect his leaving date, and he discussed the sick leave with them and mentioned his leaving date several times as being the 20th. The hr manager offered to send him info on how to claim statutory sick pay if he needed to be covered after this date.
He received the letter but as he was keen to be working again as soon as possible he didn't go through it in detail.
He started his new job this week on 23/8/16 and had since received a letter from his old employer accusing him of still being in their employ until 31/8/16 and threatening to report him to the authorities and demanding he return to work.
My partner has never ever done anything untoward, he plays by the book and is unfailingly honest. His employer is a powerful force and has a strong hr and legal team following previous unfair dismissal claims that they use to find reasons to avoid making final payments fo holiday/wages to employees that leave. I can only think that after working so hard for them they are bitter that his new job is with a competitor.
What can he do? Is he now working illegally with his new employer? Will he be forced to return to his old one or lose his final wage for gross misconduct??
He's under so much stress in his new job already that I'm terribly worried that this nasty letter will really cause him distress (he's not read it yet and I really want to do the legwork in exploring his options before I break the news)
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 1 year ago.

How long has he worked there?

Customer: replied 1 year ago.
He's worked there on and off since he was 16 and is now 32. He mostly left to travel and they always took him back, had a good relationship. The latest period of work began in January 2015
Expert:  Ben Jones replied 1 year ago.

Did the letter he received state his leaving date had been extended?

Customer: replied 1 year ago.
No, it was simply printouts from the job centre which he didn't look through at the time- now that I've checked- the HR manager has stapled his employee info to them and on those pages his final date is detailed as 31st August. He didn't see that when he got the letter.I've drafted a reply that has more detail below:
I have received your letter dated 25th August 2016 and was shocked and appalled to read the content.
I have had a good working relationship with Tregenna for many years now and have done everything within my power to ensure that the end of our working relationship was a smooth and amicable one. St Ives is a small town and as such I wanted to ensure that my reputation as a hardworking and conscientious employee was upheld. Your accusations to the contrary are both unfair and completely unjustified.
I made my line manager Ross Cook aware of my intentions to leave on Friday 8th July 2016, and gave him my notice. I also spoke to HR Manager Amanda Steward to confirm these intentions. I was disappointed to learn that my holiday that had been booked for many months previous would not be honoured as it was within my notice period. So that I might still attend a family event, I amended my one month’s notice period to begin after my return from holiday on the *****20th July 2016 ***and my final day was set at Saturday 20th August 2016, NOT the 31st August 2016 as detailed in your letter. This was agreed with Ross Cook and I had conversations with both Amanda Steward and ***** ***** about my intentions to leave on this date.
Following my return from holiday on ??Wed 20th July???? I worked diligently and over my contracted 40hours during the peak summer period without complaint and intended to do so until my final day. I pride myself on my work ethic. I did not miss any shifts. I did not call in sick. I did not arrive late.
As you are aware, while on my day off on Wednesday 10th August I had an accident at home and injured my foot. On my return from hospital I immediately called the hotel to make them aware I would not be able to return to work for at least two weeks - the guidance at the hospital was that I would not be able to return to work for two to six weeks depending on the outcome of the X-ray analysis. This I received on Friday 12th August and the X-rays showed significant ligament and soft tissue damage, but the suspected fracture was in fact a bruise to the bone and so my recovery time would be shorter; two to four weeks. I called daily and on numerous occasions to speak to Ross Cook about this and left messages with various members of the reception and kitchen teams and duty managers, but my calls were not returned. Instead, I was made aware by other members of the team that you, Ross and James had been informed of my circumstances.
I returned to the doctor on Monday 15th August for a check-up where he signed me off for one week and verbally advised me that I may need to be off longer depending on my healing time. I do not understand why you have detailed me as being signed off sick until 15th September 2016 as my sick note clearly signed me off for one week from Monday 15th August 2016.
I immediately brought the sick note to Tregenna as I had still not had anyone contact me and I spoke with you and Amanda about the way forward. You were both fully aware that my intended leave date was the 20th August 2016 and we spoke about how if I was signed off longer than this date, then I any statutory sick pay would not come under Tregenna’s remit, but under my new employer, the St Ives Harbour Hotel, and if there were any days in the interim I would need to apply for SSP myself and Amanda sent me a form to assist me with this.
As my foot was healing I intended to keep my first shift at The St Ives Harbour Hotel of Tuesday 23rd August and did not intend to use the information Amanda sent to make any claims as an non-employee and so put the letter to one side. Since receiving your most recent letter I have looked through the pages attached to this information in more detail and seen that behind the printouts from the JobCentre website Amanda has printed copies of my employee information and detailed my leaving date as the 31st August 2016.
I do not understand why you would have my leaving date as the 31st August as it has never been the case as far as I’m aware, and if for any reason my leave or length of service has affected my one month notice period, then I have not ever been told about this. Given that I first informed you of my intentions on the 8th July and was forced to defer my notice period because you intended to cancel my holiday, extending my notice period now to 31st August – almost 8 weeks later – seems unnecessary and unfair.
Accusing me of deliberately contravening my contract is completely untrue and threatening to report me to the authorities has caused me extreme distress. If I knew my leaving date had been extended I would not
Expert:  Ben Jones replied 1 year ago.

ok will reply shortly, thanks

Customer: replied 1 year ago.
Accusing me of deliberately contravening my contract is completely untrue and threatening to report me to the authorities has caused me extreme distress. If I knew my leaving date had been extended I would not have started my new role.
Accusing me of trying to entice your staff away is categorically untrue, completely fabricated and I cannot understand why you felt it necessary to include it in this letter as there will be no evidence to support it as I have never done this.
I do not understand why no-one has been in touch with me to explain that my leave date has been extended or the reasons for it. Nor do I understand the reason for the unpleasant tone of your most recent letter given that I have never given you any reason to believe that I have done anything except act in good faith and go by the book by giving plenty of notice and not walking out as so many other employees do when they are under extreme pressure in the summer months and are intending to move on.
I had hoped to end our working relationship in a friendly manner, but after this letter this seems impossible. I would appreciate it if you could fully explain your position regarding the change in date for the end of my contract with yourselves and your intentions in this regard, as after this letter I can only construe the beginnings of your intentions to try to avoid some sort of payment of my wages and remaining holiday owing.
Customer: replied 1 year ago.
Thanks
Expert:  Ben Jones replied 1 year ago.

First of all it is not illegal to hold more than one job at once – many employees have more than one job at the same time and it is perfectly legal as long as they pay their taxes in each job. There may be a specific contractual term requiring an employee to seek their employer’s permission before they hold another job whilst employed by them but this is just an internal issue, not a legal one.

As far as his position is concerned, there was a formally agreed end date which was mutually agreed between both parties. Unless this was extended through mutual consent it would be the official end date as originally agreed. They may have tried to extend it themselves without his agreement but they cannot do so unless he had also agreed to it. So as far as he is concerned, 23 Aug should be his last date of employment still. Just because he remained off sick during the notice period does not mean it is automatically extended – an employee does not have to be in at work for the notice to be valid, someone can stay off sick for the full duration of the notice period without it being extended.

So he is not working illegally for the new employer. They cannot withhold his pay for time already worked because of this so he would be due his normal pay and any sick pay up until the pre-agreed termination date. If they fail to pay him then that would amount to an unlawful deduction of wages and he can pursue them further to get this back.

This is your basic legal position. I have more detailed advice for you in terms of the steps he can follow to take this further if he does not get paid, 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, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
What a relief! Thank you.
Customer: replied 1 year ago.
Did the content of the letter read okay? I'm worried I'm a bit emotional about the whole affair as my partner has gone out of his way to look after this company and the GM is so bitter now and it all seems so unfair
Expert:  Ben Jones replied 1 year ago.

the letter is fine, perhaps leave it for a few hours then go back to it just to let your emotions cool down and absorb the position as I have advised then do another version.

As far as taking this further if he is not paid, in order to try and resolve this, the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages 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 - the time limit to claim is only 3 months from the date the deductions were made. To make the claim, form ET1 needs to be completed and submitted - you can find it here: https://www.employmenttribunals.service.gov.uk/employment-tribunals

2. 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: www.moneyclaim.gov.uk.

Hopefully 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.
That's really helpful, thank you. And so promptly as well- at least we have something to work with on a bank holiday Sunday without the strain of waiting til next week!
Expert:  Ben Jones replied 1 year ago.

you are welcome, best of luck