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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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In my contract of employment the notice clause states the

Resolved Question:

In my contract of employment the notice clause states the following: your notice entitlement is 1 month and then an additional week for each complete year of service to a maximum of 3 months.
Is this reciprocal or just from the Company to the employee? I have recently resigned and provided 4 weeks notice, my employer is trying to enforce 12 weeks (as I have worked there in excess of 8 years).
Submitted: 10 months ago.
Category: Employment Law
Expert:  Ben Jones replied 10 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Is this the only reference to a notice period in your contract?

Customer: replied 10 months ago.
that's the only text.
Customer: replied 10 months ago.
A precedent has also been set in 2011 where a director left with 4 weeks notice after working there for 18 years. Most recently an engineer resigned on 4 weeks (again with long service) and wasn't challenged. Me leaving would create an issue undoubtedly as I'm the Sales Director but I need clarity on the legal standpoint.
Expert:  Ben Jones replied 10 months ago.

Thank you. A notice ‘entitlement’ is what you are entitled to receive from the employer in the event that they terminate your employment. That does not mean it is reciprocal in terms of what you have to give in the event you decided to resign. A specific clause to that effect should have been included alongside that one. It would have been worded along the lines of ‘your notice requirement’ i.e. a requirement on you to give them a specific notice period, not an entitlement that you are entitled to receive.

So in the absence of anything specific in contract that says what you are required to give them, the law only requires you to give them a week’s notice. You are free to give them longer than that and it is for them to decide whether they want to accept that and let you work for longer than the week you are officially required to. However, they cannot force you to work for longer than what you are prepared to work.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 10 months ago.
Thanks Ben, that's clarified what I thought was the case. If they continue to be difficult and don't pay me the correct final salary (inc commission and 10 days holiday), what would be the best course of action? I'll rate your answer now...
Expert:  Ben Jones replied 10 months ago.

Thank you. if they fail to pay you then it would potentially amount to an unlawful deduction from wages, which is made illegal under the Employment Rights Act 1996.

Under law, an employer can only make deductions from, or withhold an employee’s wages in the following circumstances:

{C}· If it is legally allowed (e.g. to deduct tax);

{C}· If it is to recover an earlier overpayment of wages made by the employer;

{C}· If their contract specifically allows for the deductions to be made; or

{C}· If the employee has given their explicit written agreement for the deductions to be made.

If none of the above exemptions apply, the deductions will most likely be unlawful. 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.