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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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I have the following situation: I started work in a private

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I have the following situation:
I started work in a private boarding school on 4 Jan 2016. I resigned on 15 Sept 2016 and my contract basically states ' on completion of a satisfactory probation period one terms notice is required'. This is 14 weeks which takes me up to end December 2016.
I desperately want to leave on 4 Nov (I will have given 7 weeks by then) as I have had a situation which has made me want to get out asap.
My contract does not state what the probationary period is. And I have never been told my probationary period is over and has been successful. I view this as still being on probation and only needing to give a weeks notice.
This is the email communication between myself and the head master:
From: ***** *****
Sent: 13 October 2016 03:06
To: ***** *****
Cc: ***** *****on; Jo Parry; ***** *****
Subject: Your Resignation
Dear Jill
I am sorry to send you a rather brief reply to your email to Tony asking if your last day could be Thursday 3 November, but time is against me and I want to let you know Mr Lavender’s comments to me regarding your request:
He feels that your probationary period has expired because the 13 weeks have elapsed. You have continued to work here and are now outside your probationary period. This means a term’s notice applies. He feels the School is being generous in agreeing to less than a term by allowing you to leave on 31 December, and points out that you will have no work to do after 16 December.
The School normally says we will only let staff leave before the expiry of their contracted notice period if we can find a suitable replacement sooner. We will, of course, endeavour to do this, but the notice period is to protect the School and the students. In the event that we cannot find an immediate replacement, we are relying on your sense of duty of care to work as a professional until the expiry of your notice.
We are advertising the position, but I feel it is unlikely that we will be able to complete the full interview and safer recruitment process before 4 November as the closing date is the end of half-term.
I am sorry to bring you what I know will be disappointing news.
***** *****
Head's PA
tel +44 (0)15394 46164 Extension 246
Hi Tony
Mark suggested I contact you regards ***** ***** one...
I was looking at my contract on Saturday and it says I have to give a terms notice after a satisfactory probation period (this will be 13 weeks in total). However I feel that as I was never given a probationary period or that it had ended, I am still effectively on a probationary period.
To this effect I am looking to make my last day on Thursday 3rd November. This will mean I have still given 7 weeks. I want to be able to come back and settle the boys in after half term by working on Sunday 30th (travel day, do the passports, and reconcile the pocket money so everything is in order before I leave - this will help Mark rather than going this Friday.
Mark's contract is only 4 weeks notice period
I am hoping this will be in order as I have an option of a lucrative 4 month temporary Monday to Thursday role working 5 hours a day which I don't want to turn down. I am not starting at my new school until Easter 2017.
Thank you, Jill
Can you please advise where I stand here. They have only advertised today (after a months notice already, for a replacement, they should have done this on my day of resignation or just after. I feel they are being very awkward.
Thank you

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

Please could you kindly confirm how many weeks there are within a term? Please can you also advise what your position is within the school? Thank you

Customer: replied 1 year ago.
Hi BenThere are 14 weeks in a term. I'm non teaching staff as Deputy House Parent in the boys boarding house.

Hi Jill. Thank you for your response. I will review the relevant information and laws and will get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Customer: replied 1 year ago.
What are your thoughts initially? I'm on duty so can't talk just yet. I'm available tomorrow after 10am. If you could give me your initial thoughts I'd be grateful so I don't go to be worrying!Thank you BenJill
Customer: replied 1 year ago.
Hi Ben, are you there?ThanksJill
Customer: replied 1 year ago.
Thank you Ben.Jill

Many thanks for your patience. The relevant case in these circumstances is that of Przybylska v Modus Telecom Limited.

There, the employee Miss Przybylska, was employed on a 3 month probationary period, which could have been extended by the employer. During the probation her employment could be terminated with a week’s notice, with a longer period applying once the probation was completed. She was on holiday when her probationary period expired and the employer had not yet taken steps to extend her probationary period. A couple of weeks later she was dismissed with just a week’s notice, as required during her probationary period.

She complained of breach of contract and the decision was that she should have been paid 3 months notice, which would have applied after the completion of her probationary period. The Tribunal said that the assessment on whether to confirm the completion of her probation or extend it should have taken place during the probationary period and if it wanted to the employer should have extended the probationary period before it was due to expire. Therefore, if the employer has not taken steps to extend the probation before it expires, it would be assumed that it has been successfully completed and the terms that would apply following successful completion would be the valid ones.

Whilst the above case concerns the employer giving notice, the same principle applies if the employee was to give notice and the terms following probation would apply, in this case 14 weeks notice. That does not mean they can physically force you to remain there for that long and you could still consider leaving early if necessary.

Please take a second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars. I can continue answering follow up questions and in particular can also discuss the legal position if you were to leave early. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can still continue this discussion. Thank you

Customer: replied 1 year ago.
Thank you Ben.I will rate this 5.Can you advise legal implication if I leave early having still given 8 weeks and I am drained of life to do any more. They should have advertised my role a month ago and are stating that unless they find a replacement then I need to stay on.. it was only advertised today after a month of my resignation. Is there any way out of this without them being able to take legal action against me?I was never told my probation was completed and successful or given option to extend it.ThanksJill

Thank you. If the employee fails to honour their 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.

Customer: replied 1 year ago.
Ok Ben, thank you for that. Much appreciated.Jill

you are welcome, all the best

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