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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50202
Experience:  Qualified Employment Solicitor
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Notice period advice

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I'm wondering if you can help...... I have recently given my notice and my current employer is enforcing my full 6 month notice period. My notice was increased from 3 - 6 months mid-way through my employment to my reluctance, however no official contract was ever signed, only an e-mail agreeing to the terms on the basis that they would continue to develop my role/skill set. Is an e-mail on its own enforceable? I am planning on working the full 6 months as I don't want to depart on bad terms, however the employers reaction has not been pleasant (banging doors and to quote "your line manager will probably want to punch you in the face" in front of HR rep) so I'd like to know my options just in case. On a separate note I am also concerned that they will withhold any commission that is due to be paid despite the fact that we are performing well above budget due to my performance. Can they do this? Finally in terms of my departure date I originally handed my notice in on 29th July, my company then countered and I verbally agreed to stay however the terms and conditions of that agreement changed (i.e. the start date of the counter offer was delayed by 4 months) and I did not sign the new contract issued, I then handed my notice in again on 18th August due to this and a competing counter offer from the new company. My employer is saying that the notice period will now start from 18th August but I personally feel as nothing was signed or put in writing that the 29th July still stands. Any help would be gratefully appreciated. Thank you for your time.

Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 2 years ago.

I have been employed with the company for just over six years. Thank you for your help.

Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Many thanks for your patience. An email could indeed be sufficient and be legally enforceable. In fact even a verbal agreement can be binding so it is not necessary for a formal contract and signature to have been in place for this change to become effective. What is needed is an offer and acceptance, so if the employer had offered the new notice period and you had accepted it then it would have become legally binding. You may have accepted it reluctantly but it is still an acceptance. If you did not want to be bound by it then you would have been expected to object to it at the time and make it clear that you do not accept the terms in question.
As to the leaving date, if the employer countered with an offer and you accepted it but then the terms of that offer changed then the offer itself would likely become invalid because it would amount to a breach of contract by the employer. Had they stuck to their original agreement which you had accepted then it would be valid and the resignation would have been retracted, meaning that any new resignation would start from the new date it is given. However your main argument here is that even though you had accepted their counter offer, the terms subsequently changed and as a result the offer was no longer binding, meaning your position returned to the state it was before this acceptance, namely that you had resigned with effect from 29 July.
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 2 years ago.

Hi Ben,

Thank you for your advice, this is helpful.

Do you have any comments regarding the following question:

"On a separate note I am also concerned that they will withhold any commission that is due to be paid despite the fact that we are performing well above budget due to my performance. Can they do this?"

Having a look in the recent contract they issued (that I didn't sign) it does state:

"During any such period the Company will continue to pay your salary and provide all other contractual benefits to which you are entitled, provided that the Company may instead provide you with the monetary equivalent of all or any such benefits at its sole discretion"

What exactly is the commission based on?
Customer: replied 2 years ago.

Commission is quarterly and is based on sales vs. budget on which I am over achieving. This would usually entitle me to £3k of commission in October representing sales between June - September and another £3k of commission in January representing sales between October - December.

So a few questions:

- Can they get away with withholding commission?

- Can I use this as an excuse to exit early if so?

- Worst case scenario am I entitled to a percentage of commission based on the fact that I handed in my notice in August? If notice period is an excuse to withhold then surely I should be entitled to a percentage of commission representing June/July when I wasn't on notice?

When it comes to workplace commission or 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 commission or commission 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 commission 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 commission should be paid or not, this will not always be the case. If the eligibility to commission 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 commission 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 commission 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 commission would automatically become payable if the eligibility criteria have been met. You are correct that in the worst case scenario you should be entitled to a proportion of what you were due to reflect the time you were still there when the eligibility applied. So it would be difficult for the employer to refuse to pay you the commission if the performance criteria have been met. If they do then it could indeed be used as a reason to resign and claim constructive dismissal. 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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Customer: replied 2 years ago.

Thank you Ben.

The bonus is based on performance criteria, which I am able to prove that I have met through financial reports/sales ledgers which I share on a weekly basis with the leadership team.

So to clarify, if they refuse to honour my commission/bonus structure, this could be used to resign with immediate effect and claim constructive dismissal? Would this make my notice period unenforceable on their part should it go to court?

This is my last question.... and I do appreciate your help! I'm hoping it doesn't come to this but it's always good to be armed with all the facts.

When you claim constructive dismissal you would be resigning with immediate effect and without notice period. So you are effectively claiming that through their conduct they have committed a serious breach of contract which has made the whole contract void and allows you to treat it as terminated with immediate effect. As the contract itself is voids its terms would no longer be applicable, including the requirement by you to give any notice period.
Customer: replied 2 years ago.

Sorry one last thing, your answers keep creating questions....

Can I just clarify that I can claim constructive dismissal personally, I don't need to do this via a solicitor unless I'm looking to make a claim?

You can use constructive dismissal to resign with immediate effect then decide whether you want to pursue it further in the employment tribunal. Either way you do not need a solicitor, even if you were to make a formal claim.