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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 55118
Experience:  Qualified Employment Solicitor
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Please help me! My employer put me on garden leave within 2

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Hi, Please help me! My employer put me on garden leave within 2 days of my serving my notice, this is due to end of tuesday 20th march. In the meantime, he has sent malicious mail to my new employer by hacking in to my emails; he emailed my new employer stating I wanted to attend an interview at another company as I would prefer to work for them rather than my new employer - addressing the other company who were interested in meeting with me via email but addressing my new employer by name. This resulted in my new employer withdrawing my contract of employment and job offer until I was able to prove the email was sent maliciously with the intent to cause harm to my future career. He also sent an email to the other company interested in meeting me to the correct email address but headed up the email in the name of my new employer; another deliberate attempt to sabotage this job also if I decided to attend the interview, he stated in this second email I had accepted a job elsewhere, in the hope of jeopardising both positions. I have filed a report with fraud action for police but not heard anything other than a confirmation that it has been passed on to the relevent department in which they have 28 days to respond. I have not informed my employer that I know what he has done, however, he has now requested I attend the office for the last 2 days of my garden leave, which I am extremely reluctant to do due to his actions in the interim. I requested to take my holiday leave as of yesterday as I have 2.5 days owing, which he has refused to accept stating I did not give notice and that my contract states he does not have to honour or pay if not taken as it is a clause in my contract. I feel I am being unfairly victimised and violated by his behaviour, what can I do ?Many thanks,Donna
Customer: replied 1 year ago.
Just so you are aware, I do have proof of his malicious email sent in my name and evidence of him deleting the email as well.Thank you,Donna Stokes

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

What are you actually hoping to achieve in the circumstances?

Please note as it is the weekend I am not always available and may not reply fully until tomorrow, thanks

Customer: replied 1 year ago.
Hi Ben I want to know if I have to attend work Monday and Tuesday as I am really not happy to do so given the circumstances. I also have been informed by Acas that I can sue for malicious fraud and defamation of character, I would like you to verify this please.
Customer: replied 1 year ago.
Why have I paid for a service that doesn't appear to be provided to me as I am still waiting for your reply?

Hello, I was actually just going over your question now. Also please refer to my message yesterday:

Please note as it is the weekend I am not always available and may not reply fully until tomorrow, thanks

OK, so first of all you may not be able to take these last couple of days as holiday if you have not given sufficient notice to do so. Under law the notice you must give is at least twice as long as the requested days, so in your case you need to have given them 4 days’ notice. Even if you did, they can reject your request by giving you notice equal to the requested days, so they can give you 2 days notice of their refusal. However, if they have refused your request you are still legally entitled to be paid for these days.

In terms of having to go back in, you do not have to and no one can force you to. There are circumstances when an employee may be entitled to leave with immediate effect and without honouring their notice period. This occurs when an employer has committed a serious breach of contract first. The whole contract, including the notice periods, then becomes immediately void and the employee would be treated as being 'constructively dismissed'. So if there are reasons to believe the employer has acted in breach of contract, whether a breach of an express contractual term, or other breaches such as bullying, exposing the employee to unreasonable stress, discriminating against them, etc. this reason can be relied on in order to leave with immediate effect.

In terms of suing for defamation or similar, whilst this may appear to be a potential case of defamation (this includes libel if it is in written form, or slander if it is in oral form), such claims are rather difficult to pursue. Many people are keen on suing for defamation without having full appreciation of the law or practicalities in doing so. I will try and clarify the position below.

First of all, certain conditions must be met for the statement to be classified as defamatory. These are:

1. There has to be a defamatory statement - the assessment that is often used to establish this is whether the statement tends to lower the claimant in the estimation of right-thinking members of society generally

2. Its publication has caused or is likely to cause serious harm to the reputation of the claimant – this will vary based on what effect it will have but it really has to be something sufficiently serious

3. The statement has been published by the defendant to a third party

4. The claimant must prove that the words complained of were published about him - this should not be an issue if the claimant is named or clearly identified.

Whilst it may be easy to prove that defamation has taken place, the legal process of pursuing such a claim is often complex and prohibitively expensive. A claim must be made in the High Court and will likely require the help of professional defamation lawyers, so the costs will often be high right from the outset, usually in the thousands. There is also no legal aid available for such claims so the complainant must fund these personally.

You must also consider whether the publisher of the statement can potentially defend the claim. For example this can happen by proving the statement was true or an honest opinion which could have been made based on the available facts.

Instead of starting legal proceedings it would be best to contact the publisher of the comment, advise them that what they have done amounts to defamation and that you will consider pursuing the matter further if they do not retract their statement and issue an apology. This could prompt them to reconsider their position, which would avoid the need for court action. Of course, if they refuse to comply the option of suing still exists, but consider the above information before going down that route.

I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you

Customer: replied 1 year ago.
Thank you very much for your reply Ben. The only thing is my employer doesn't know I have any knowledge of his malicious emails, as I have lodged a formal complaint with the police action for fraud dept I didn't want to jeopardize my case by him knowing about it.
Customer: replied 1 year ago.
With regards ***** ***** holiday, apparently within my contract my employer can make this part of my garden leave, therefore he doesn't have to pay me for it either, this seems most unfair, I feel like I have been tied up in knots that I cannot get out of!

It is entirely legal for your holiday to be taken as part of your garden leave however the employer must give you notice that they intend to do this. Also even if you did not mention the actual reasons for leaving early, the fact is you will only be leaving with 2 days to go and in these circumstances, all the employer can do is pursue you for losses incurred as a result of that. This really only becomes relevant if you have left with a long time to go, where they need to get a replacement employee at extra costs to cover for you. Two days will hardly have any big effect on their business, especially as you were already on garden leave and not doing any work. Hope this clarifies?

Ben Jones and 3 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
this clarifies the situation with regards ***** ***** To be honest with you Ben I think he is only doing this because he thinks this is when I am starting my new job....
I just really don't want to go into the office knowing what he has done and have to not get angry and kick off at him!!

It is up to you to be honest, it is only two days so if you want to make sure you are all above board, just turn up keep your head down and do your work, then at close of play on Tuesday you will be gone for good...

Customer: replied 1 year ago.
Wise words Ben! I know you are right I just hate injustice especially when it is done to me or someone close.
Thank you so much for all your help and time.
Best regards,
Donna Stokes

You are most welcome, if anything new comes up get back to me and I will gladly help