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Senior Partner
Senior Partner, Solicitor
Category: Law
Satisfied Customers: 13329
Experience:  Solicitor with more than 30 years experience
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I have a position with a 3-month notice period that Ive been

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I have a position with a 3-month notice period that I've been in since May 2012. At a meeting on 16 January I was told that they weren't happy with my performance and the minutes of the meeting stated "[The MD] then asked how felt about taking a step down to an alternative position where he felt would be able to deploy [my] own particular skills well. Alternatively [the MD] suggested that might prefer to resign. In either case [my]notice period in terms of salary payment would be honoured." The question was asked if I wanted to leave before the end of my 3 month notice period would that be permitted. The answer was yes, but there was no mention of a proportionate reduction of salary payment. I was in the fortunate position of being in the final stages of interview for an alternative (much better) position at the time so I told them I was 80% certain I would resign and would let them know by 1 Feb. A few days before that date the MD phoned me to try to push me into a decision. He told me if I didn't give him an answer by 1 Feb he would sack me. At that point I was 99% certain I was going to be offered the new job (fortunately I was correct) so felt I was forced to resign even though I felt uncomfortable that the job offer wasn't actually 100% at that time. I therefore resigned and, after discussion, agreed a final working day of 1 March. Again no mention of salary implications were mentioned. They have now said that they are only going to pay me to 1 March rather than the end of April as I'd assumed from the text of their minutes since that will be my final working day. We've just had another meeting at they say it was never their intention to pay me the full 3 months of my notice period if I left early and apologised for not making that clear. I pointed out that if I'd let the MD sack me then they'd have had to have paid me 3 months anyway and they wouldn't have got any work from me in February either. I feel that I am being penalised for being reasonable. Under these circumstances am I owed 2 month's salary even if I don't work them?

Thanks for your question. There is no question that their conduct could have amounted to constructive dismissal . Additionally if you resigned and gave 3 months notice then you are entitled to be paid for that period even if not required to work it. They are not entitled just to force you to accept a shorter period. The problem for you I suspect is that if you want to be paid for the notice period , you cannot start the new job. you are not supposed to work if you are still under notice even if not required to attend the office. Also if you are earning elsewhere and claim for damages you have elsewhere. however if you gave notice to expire at the end of April and they asked to to stop working earlier you could clam that non payment of the balance of your notice is unlawful deduction of wages. Do you need a reference for your new job? When are you starting?

Customer: replied 5 years ago.

Thanks for that. I have already arranged references for the new job. I have suggested a start date for the new job of early April but this hasn't been confirmed yet. An extra detail is that the MD wants me available as necessary after 1 March which I was happy to agree to since I thought I was being paid anyway. Also, him letting me leave on 1 Mar was conditional on me completing certain tasks (which I have done).

In that case you can make it clear to them the you do not waive your salary for your notice period and if you are not paid you will bring a claim. You are certainly entitled to claim and you can point out to them that they have no right unilaterally to decide not to pay you. I would also perhaps point out that by telling you to resign or you would be dismissed you were constructively dismissed even though you resigned so they are liable for damages for breach of contract anyway.

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Customer: replied 5 years ago.

As suggested, I sent a message to my employer and they spoke to their own lawyer. He confirmed that we were correct and the company was wrong to do what they did so they have agreed to pay me the 2 months salary for March and April. Result! Thanks for your help with this. They now want me to sign a thing agreeing not to sue them for the constructive dismissal, but I'm OK with that.

That is great news. Very pleased for you. Thanks for letting me know.