Leaving a job before notice period expires.... can it be done?

(42 Posts)
fluffymindy Mon 29-Apr-13 19:04:06

My DH has been offered a (dream) job. He was just about to send his notice to his boss and was checking something on his HR website and had found that his role has a 3 month period of notice.... clearly he signed something at some point about this. He was promoted a level this time last year for which he signed another contract (which is most likely when it happened - yes I know he should have checked) other wise it could have happened a few weeks ago when he was promoted to Director (nothing new signed for this was a name change only)

So here is the problem, his new job NEEDS to start in 6/7 weeks. He will have about 2 weeks accrued holiday so wtf are we going to do???? He is in a high profile position and I know they are not going to want him there under sufferance but his Boss is an asshole a bit petty and would, I suspect love nothing more than to make things very difficult...

Could he ask for unpaid leave? What would you do in this situation? Can they sue him personally for breach of contract?

Any help or advice would be appreciated

TIA

fluffymindy Mon 29-Apr-13 19:22:08

bump

ajandjjmum Mon 29-Apr-13 19:23:23

Surely they would have pointed out to him any serious changes in the contract - like extended notice period. Whilst he should clearly have read it properly, I would have thought they had some responsibility to point it out.

jelliebelly Mon 29-Apr-13 19:26:31

He needs to come clean to his new employer and start negotiating with existing one - if they are glad to see him go they might forgo notice but is v unusual.

fluffymindy Mon 29-Apr-13 19:30:11

No it was def not pointed out, we know that. That said surely it is his responsibility if he wasn't so upset I would bloody slap him The thing in his favour is that they wont want someone of his level beoing hugely malcontent in the office or representing his company, they do have a history of putting people on gardening leave <hopeful>

I wonder if we can buy him out, we are getting a wad of cash from new employer to move so I wonder if this is what we are going to spend it on!! -- had my eye on a few trinkets--

fluffymindy Mon 29-Apr-13 19:31:19

His notice period was def 6 weeks in the past and it either changed last year or a few weeks ago. I wonder if they automatically make Directors on three month notices?

Blankiefan Mon 29-Apr-13 19:37:15

It might depend on where he's going - especially if it's a competitor. In my last job, my employer wasnt happy about wherei was going and made me work every last day of my 3 month's notice. Given I was quite senior and I was going somewhere sensitive (to a custome rotors), they even pulled me away from the higher level, strategic work I was doing and essentially paid me a high salary for doing quite a junior role for 3 months. They were partly being petty.

To be fair, part of the reason for a longer notice period is that departures at a senior level can be more disruptive and take longer to recruit (as potential recruits also have a three month notice period to work). Also, it gives the company's buffer if they're going elsewhere in the industry (some companies would rather pay someone to stay home for 3 months and allow their industry knowledge / competitor info / etc to get three months out of date - its about commercial advantage)

None of that probably helps you! What I would say (as someone who recruits at this level) is that good candidates aren't as common as you'd think and most good employers would wait the extra time than lose a great new recruit... It's only another 6 or 7 weeks. They may not be happy but at the same time, it shows that he is good to his word and won't walk out on the new employer. I'd be nervous of doing nothing more aggressive (he could lose out on salary, a reference and make his new employer a bit hmm about his commitment levels).

alienbanana Mon 29-Apr-13 19:39:37

If he's in the kind of role that can mean gardening leave surely his new employer would be reasonable?

Is there a particular reason he has to start in 6 weeks?

Has he checked the new contract he signed to see if it mentions the longer notice term?

If he goes on gardening leave he won't be able to take up the new job till the end of it without being in breach of contract. I would say he has to try and negotiate with the new employer, at director level I would have thought 3 months was the norm? I had mine changed to 3 months once and it was pointed out, but only casually.

This happened to someone I know recently, he was upfront with the new employer and they did wait (they weren't happy though as they had to cover the gap for longer than planned).

fluffymindy Mon 29-Apr-13 19:49:33

We cannot find the contract at the mo.... we moved house at the same time a year ago when he signed it. I have torn study apart and will carry on in a bit. The other employer is not a competitor no. It took his new employer 8 weeks to recruit him...... it is quite hard to find a job like he has been offered in the area it is. I would hope they would wait for him but they were very pressurey today with him about a start date as they have no one in role at the moment and it leaves them wide open with no one senior there.

I know it is his fault but seriously this is a once in a lifetime job. Properly life changing and I do feel for him. I wonder if he can ask for unpaid leave? He has been with them a long time, apart from his horrible Boss there are no problems, it is more about a lifestyle change for us all. I would hope that all his good service would stand him in good stead for working this out with them. I am sure it would be easier to recruit someone else in 6 weeks with him onside rather than trying to recruit with him not cooperating?

fluffymindy Mon 29-Apr-13 19:50:44

And no, it was def no pointed out to him casually or otherwise....

flowery Mon 29-Apr-13 20:00:42

He can ask to be released early, certainly. At a very senior level there is more of a risk walking out and breaching contract, as it is more likely to be worth his current employers time and money suing him than it would be for someone more junior, as they may well be able to demonstrate actual financial loss as a result of his breach.

If that isn't the case, the other reason not to breach his contract is if he thinks there is the slightest possibility he may need a reference from them in the future, or that there is any risk of reputational damage in the industry, which again at a very senior level, is likely.

It's really not worth it for the sake of a few weeks. His new employer aren't going to find someone else who is right for the role who can start sooner than he'll be able to anyway.

Ask to be released early, but if not, his new employer will suck it up rather than re-recruit I'll bet.

Oh, and breach of contract includes working for someone else while on garden leave, btw...

flowery Mon 29-Apr-13 20:02:12

Oh, and he shouldn't be checking the company's HR site to find out his own personal notice period, he should only be checking the last contract/letter he signed/was issued, and giving notice referring to and according to that.

Given that this involves positions at a senior level DH could try to negotiate a scenario that would work for both companies.

Eg staying for the three months to enable current employer to manage transition, recruit replacement, arrange handover of all projects etc but doing it part time (and presumably paid pro rata), enabling DH start with the new company part time, get to know people, be briefed on projects ready to hit the ground running when start fully iyswim.

This happens a lot at senior level within the public sector where I work. Might be worth a punt to make everyone happy?

fluffymindy Mon 29-Apr-13 20:08:19

Well the new employer had LOT of applications for this job - the package is amazing so it has been hard won for him. His company will not be able to prove financial loss from him going early - he works in the dark arts of PR but not commercially IYSWIM - so it will be inconvenient for them only because his specific skill set is hard to find.

The new employer did mention the notion of starting ages after they planned could be a deal breaker..... I know part of this is to pressure him into signing his contract and to reduce his negotiation time for the package - it is all a bit game playing but he is costing them a lot to get so they want what they want

FFS this is an absolute nightmare

So he doesn't actually know that he signed a contract with three month notice? He really needs to talk to his HR department then, he might not have done.

fluffymindy Mon 29-Apr-13 20:10:08

Good plan Yoniexpress except one is in London and the other miles and miles and miles away (although the new company so have an office in Canary Wharf too................) That might be an idea.

fluffymindy Mon 29-Apr-13 20:12:52

Yes flowery, we are going to find the contract. It could have been done automatically when he was made a Director a few weeks ago..... I need to find the effing contract!!!!!!!!

nextphase Mon 29-Apr-13 20:13:26

Flowery is the HR expert, so whatever she says is correct, but I'd have thought gardening leave, unpaid leave, or anything else that means he is technically still employed by his current employer could be a problem. He needs early release, surely, so that his contract ends, and he is free to start a contract with the new company?

fluffymindy Mon 29-Apr-13 20:14:56

Mind you, a lot of his job now can be done from home.... thinking thinking

LadyStark Mon 29-Apr-13 20:25:28

I recruit at director level in PR - wonder if I know your DH!

Anyway, contractual stuff aside, the only thing that can sometimes work is agreeing/suggesting a specific task or job to complete and he can leave when it's complete - e.g the strategy for next 12 months, writing annual report etc. Is he in-house or agency? Sometimes it's harder in-house as they may not have anyone who can provide senior counsel but agencies don't tend to have this problem so much.

Could they second one of his team into his role? Use it as a development opportunity? Can DH recommend a good interim for them?

LadyStark Mon 29-Apr-13 20:27:59

Oh and if the new employer took 8 weeks to recruit then it's unlikely they'd be able to get anyone in post sooner than three months anyway - and it's almost never worth the faff to lose your preferred candidate over 6/7 weeks!

sleepdodger Mon 29-Apr-13 20:33:50

I would plead ignorance and in notice letter say something like I hereby give my notice and intend xx date to be my last working day at (name enployer) ... Including/ excluding holiday. NB he would be better taking the hol as he might not be able to start elsewhere and still be on 'holiday' in previous role

fluffymindy Mon 29-Apr-13 20:41:21

Yes LadyStark that is my thinking. I feel that the new people clearly need someone quickly but a lot of the pressure is about reducing negotiation time (fair play) - he is in-house.... but I know his company would find it very very hard to prove any commercial loss from his leaving. He has stuff going through House of Commons and stuff like that but nothing he cannot leave. There is someone who could cover for him in the short term but he is not someone who could actually take the role in reality....

He is offering to do the forward planning, he is also explaining to his employer the reasons for us moving to the new area (it is actually about a special school for our DC)

DH says he does know that people have been released early before but then again they didn't work for his asshole petty boss

He is going to take the asking nicely route and rely on his good service as a bargaining chip.....

A 3 month notice period is pretty standard for a lot of professional jobs and depending on the contract signed, notice period may be increased with tenure within the company, eg. 4 weeks notice for under 2 years service, 8 weeks for 2-5 years service etc. Most companies recruiting for senior positions build in a notice period of that standing into their recruiting process as this will affect most candidates. Depending on what his contract states about other paid employment, then starting work for another company may be a breach of contract.

You also need to check the contract as to whether their are any restrictions on the type of work that can be undertaken immediately after leaving, some professions will put in a time cause to stop employees going into a similar company even if not a direct competitor for a period of x after notice period. I don't know contracts in PR so can't comment for that industry but do know about otter contracts in the professional industries.

When initially going for the new role, your DH really should have checked his contract carefully as people have accidentally unstuck due to issues like this before. Stating that, I would be very surprised if a company recurring at a senior level would let a preferred candidate go due to having to serve a standard contractual notice period.

Your DH does need to have a discussion with his employer in order for them to come to a mutually beneficial timing. There a a lot of companies who wouldn't take it well if they were told outright that an employee was not going to honour notice period but would take it definitely if an open discussion around the issue was broached.

Good luck!!!

fluffymindy Mon 29-Apr-13 21:22:41

There are no restrictions on the type of work, they do not have competitors as a such, they are a public interest body. He has work for them for 7 years I think with excellent service. I am really hoping that they will be good about it. My Dh is an honourable sort and will do all he can to make the transition smooth.

And seriously I know he should have read the contract, his original contract was 6 weeks and he has been promoted several times and hence he didn't think to read it! Daft I know but he just didn't feel the need!!!

I think they would rather have him helpful and cooperative for 6 weeks than force him to stay.

I know what its like as I've recently had someone in my office who hadn't realised that they had a 3 month notice period as well, so i know does happen. Luckily I work for a fantastic company so was able to sort out an agreed period that suited everyone.

Although it already looks like he's done this, but just in case he hasn't, can your DH think of any excuses at his boss may come up with to ensure that he serves his full notice and pre-empt them with workable solutions. Is there someone in-house that can competently full his shoes, if he honestly feels that this could be an issue then this in particular could be a stumbling block as they would genuinely need to go through a recruiting process themselves.

It is a hard situation as his boss doesn't have to be the good guy here but finger's crossed that he if does play the full contractual card that the other company will wait. Also, within his company, is this decision made solely by his boss or would it be made together with HR, and othervsenior management, if the latter then he ma have the chance of getting support from others who recognise his great service.

flowery Mon 29-Apr-13 21:57:15

nextphaseMon 29-Apr-13 20:13:26

"Flowery is the HR expert, so whatever she says is correct, but I'd have thought gardening leave, unpaid leave, or anything else that means he is technically still employed by his current employer could be a problem. He needs early release, surely, so that his contract ends, and he is free to start a contract with the new company?"

Yes exactly smile

OP they can't have increased his notice period automatically, he would have had to been notified and either signed something or at the very least had the opportunity to object to the proposed change.

fluffymindy Mon 29-Apr-13 22:02:14

Agreed that he must have signed something as this was on the HR system when he logged on. I think he just didn't check each time he signed! dimwit I think he will be checking his new contract with the other company very very carefully.

He either needs to be completely straight with them or play it dead cool... not sure which he should do.

fluffymindy Mon 29-Apr-13 22:04:35

And honestly, whilst technically it is breach of contract to start another job whilst on gardening leave, who would really sue for that? what grounds would they have if it did not detract from their business?

Depending on the company, yes they could definitely sue and it would be on the grounds that he had breached his contract with them, they don't need any other reason. This could wreck his reputation within the industry, and why would any other company want to hire someone who appears to want to pick and chooses what clauses in his contract he fulfils.

I know that I would not look favourably upon any employee who joined another company whilst employed just because the terms of his current contract contact didn't suit at that moment.

Also, if his new company found out that he had signed their employment contract whilst being fully aware that he was still contractually bound by another company, then this could be grounds for instant dismissal.

I realise that this is frustrating for you, but there are many good reasons that companies need to put longer notice periods for more senior or tenured people.

The other offer may not be as black and white as they are making out, your DH needs to explore all options with both companies whilst realising that there is a chance that he may be put on gardening leave.

fluffymindy Mon 29-Apr-13 23:06:25

I just cannot understand why a company would bother to go to all that bother though - what would they have to gain? For the sake of another 6 weeks (minus hols), I cannot imagine anyone could be bothered. I am not trying to be contentious I just don't get it. His company is not going to lose money and actually the publicity for them would not be good either...

Anyway, he is going to take the nicely route and see where it gets him. There is another Director who could be an ally for him as they have been there a long time too - the person who is his direct asshole boss has not been there long.

I suppose what they have to gain is to give the message that they take their contracts seriously, if they let one employer breach their contract then there is little to stop others doing the same.

annh Tue 30-Apr-13 07:58:47

OP, it doesn't really matter whether you "get" why they would sue or not. The fact is, they can, and they might. The publicity from it is not going to reach the front page of the Daily Mail but within the industry it could actually send out a message that they will not break contractual terms and sends a very clear message to their own employees that they are not to be messed with, either on length of notice or ignoring gardening leave restrictions.

I know the new company apparently needs someone in about 6 weeks but if they are recruiting at director level, notice periods of 3 months upwards are totally the norm so they must have been expecting to have to wait for any appointed candidate. It is a bit embarrassing however for your husband to have to go back and tell them he didn't know his own contractual terms.

And find that contract!!!!

flowery Tue 30-Apr-13 09:37:57

"I just cannot understand why a company would bother to go to all that bother though"

For some employers it will be a principle and sending a message.
Some will incur a financial loss as a result of the breach and will want to recover it.
Some react badly to a resignation and want to make a point. I note you say your DH's boss is petty...

They wouldn't necessarily take it as far as actually suing him of course, but unpleasant letters can be exchanged and reputations can be seriously damaged, which is the thing I'd be most concerned about.

You mention above the options are being straight with them or "playing it dead cool". I'm not sure what "playing it dead cool" means, but I would urge him to be straight with his employers, be cooperative and hope they release him early.

nextphase Tue 30-Apr-13 21:15:54

Sorry, OP. Hijack.
Flowery: I've seen you on a number of threads, and your always lovely, and seem to have accurate advice. flowers or wine for all your help to everyone here.

flowery Tue 30-Apr-13 21:38:13

Aw thanks! Having a wine right now as it happens! smile

hermioneweasley Tue 30-Apr-13 22:06:22

Flowery - glad to see you being appreciated. I see there's been a few threads recently where you have put effort into giving advice and the OP has never come back.

fluffymindy Thu 02-May-13 13:38:39

Ok, amazing update. My DH spoke to them and they are going to let him go........... Thank you for all your advice, it was so helpful and he approached them with an offer of what he would do in the time he has left. His horrid boos is making out he could stop him if he wants but DH is on good terms with HR and they said they will give him his references and let him go without a fight. They are not happy about it but they also know keeping someone there under sufferance is a bad idea. they need him to cooperate to get someone new and dot he hand over.

Thank goodness we are in the home stretch

Good news OP.

With regard to Flowery's point above about some employers suing employees who don't respect their notice period....my previous place of employment did just that, and I was the lawyer who advised them.

We had a temp who was on a 4 week notice period who left us in the lurch - just walked out and made life v v v difficult. Her manager was FUMING. We sued her to make a point - we claimed about £500 and the costs of doing so were about £30. She got a CCJ against her. Yes it was a nasty thing to do, but equally she had no respect for her job / her work or the absolute mess she left behind. Lots more to the story, but just to make the point that some people do get sued, and thinking, I'll get away with it and they won't bother suing little me, doesn't always wash.

No one else tried it on!

flowery Thu 02-May-13 14:45:39

Pleased you got a good result OP, hope DH's new job goes well. smile

fluffymindy Thu 02-May-13 14:46:54

No they wont sue him ,that much is clear. They are (as they should be) going to be dignified about it and part company on good terms as he has been there a long time and is well respected. This company tend not to pursue people through the courts because they like to protect their image (thank goodness for us) and Dh is doing forward planning for them and advising them in return for them releasing him early.

Six weeks is plenty long enough to hand over effectively and Dh feels that he is not leaving them in the lurch by any means. Honestly if the horrible boos had been a bit more decent about things he wouldn't have wanted to leave anyway. Thankfully HR are very much on his side and effectively said, we will not stand in your way, we understand and we willhappily give you references and certainly not sue you!!!!

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