starting a new job during notice period

[finefatmama]

Person A , on getting a job offer, resigned his job and gave 2 months notice (he has no agreed contract having raised an objection to the initial contract when it was issued. it was withdrawn but never reissued over a year ago). He also had 26 days leave outstanding and offered to work through the notice period in exchange for payment in lieu of holiday. The boss turned down the offer claiming that he was trying to get paid twice and that additional days handover was not required so Person A proceeds on holiday and starts working at the new place before the expiry of the notice period. Boss/old employer is very unhappy and issues a negative reference claiming Person A is dishonest and wouldn't be recommended for employment nor would he be re-employed. this is also followed up with a phone call to new employer demanding that this person should not be paid as they as still employed by the old employer. There had been some minor disagreements between the two during the course of employment but no disciplinary issues, investigations, capabilities, performance management concerns that have been raised, documented or brought to his attention throughout the course of the employment.

Person A is understandably upset by the actions of his old employer given that his offer to work was rejected and he was certain his services were no longer required (his remote work access was revoked during the leave period and all work tools had been returned). There is no agreed contract and the leave policy does not prohibit additional employment. In fact, the boss had just employed new staff who were still working their notice periods at other places so had overlapping service and had also encouraged some staff who wanted extra income to work for another company, in which he has pecuniary interest, during their holiday time.

Having gotten myself in a tizzy over this issue, I have advised this person to raise a grievance first but he wants a more formal approach as it's not certain that the new job would keep him given the bad reference received. He had two other good reference including on from the big boss at the business so I'm guessing that new employer would consider the references on the balance of probability during the probationary period.

Person A is a relative so I'm too pissed off for him to be objective tbh. I don't really like confrontation and would have gone for mediation.

[kayah]

I am not a layer but person A should reread his contract.
I guess it says there that he can't undertake new employment if still working for the current company unless employer agrees.
This always must be officially agreed on case by cas basis.

Old Employer calling new company is a bit of a joke on the point of demanding Person A not to be paid, but , but person A I think is in the wrong here. Employer has got the right to give references, withdraw them. In fact Iknow it is a practice between companies to let know each other if employee has been found dishonest, stealing money etc.

I am not sure waht standing Person A has against his old company here.

[flowery]

Has he actually lost anything as a result of this? You don't say the new employer has dismissed him and he has a good reference from the previous employer and another one, plus presumably he has explained what happened to his new boss. If they haven't dismissed him at the moment it's obviously not a deal breaker which means as long as they are happy with him during his probationary period he'll keep his job, and if they're not, he won't. It won't be because of the reference.

If he's not lost anything and still has two good referees plus going forward one from his new employer for future employment, there's not a lot of point bringing any kind of legal action. (I assume that's what you mean by 'more formal' than a grievance?)

Just as another point, you mention a couple of times his 'offer' to work his notice as if he were doing them a big favour by doing so. His employer had every right to require him to take holiday during his notice period and if his attitude has been about doing them a big favour by 'offering' to work then I imagine that's part of the explanation for their actions.

If the big boss was happy with him and can be provided as a reference from that employer going forward and the situation has been explained to the new employer without the offer being withdrawn on the back of that situation, I think his best bet is to leave it tbh.

[finefatmama]

just clarified - the reference regarding him being dishonest, unreliable and not trustworthy was false. The new company phoned through for more detail, they were told by the boss that it his 'perception and personal judgement' and that this person was trying to get paid twice. Being none the wiser, the new company asked for another reference from a non executive board member (big boss). The boss who gave the negative reference is the most senior officer of the company and is the only person authorised to give references on behalf of the company.

On the trying to get paid twice issue - the argument regarding double payment arose when he was told to work throughout his notice period on a project and forfeit any outstanding holidays or payments in lieu. He was happy to work on the project but only if he would get paid in lieu of holiday. He was told that payment in lieu for outstanding leave amounted to double payment and was not company policy. He then 'offered' to do the work if the boss would authorise an exception. This was rejected, he was informed that he should hand over the project then take the leave to which he was entitled at the end of his notice period. presumably, this means that he was not available to carry out any work for the previous employer and was free to work during his annual leave.

The is no agreed written contract to the contrary. A contract was issued, disputed and withdrawn but no new one was reissued. The initial contract like all other ones did not contain clauses prohibiting second employment - there's even an odd jobs board in the lunch room for staff who want to take on the odd evening or weekend job or work during the christmas closure periods.

He has taken legal advice and was told that he has a case for negligent misstatement, and malicious falsehood. He now wants to pursue it as his new role is temporary and he will need another reference shortly.
I think a grievance should be raised with a view to securing an agreed reference and that he may not be an attractive prospect for future employers if he proceeds with a tribunal.

[StealthPolarBear]

flowery, is there any sort of assumption (in a legal sense) that if you don't sign a contract but work somewhere for a certain length of time that you have implicitly accepted the contract terms - so assumed signed iyswim?

[flowery]

SPB - yes. You can work 'under protest' as long as you make that absolutely clear, although that wouldn't normally be for an extended period of time. But if you just don't sign but carry on as normal your employer would be able to argue you'd accepted those terms, especially as no alternative ones were issued.

OP just because he technically might have a case for negligent misstatement and malicious falsehood doesn't necessarily mean it's worth pursuing it. His solicitor will be able to advise him better than we can third-hand on here, but with legal fees and no demonstrable financial loss I'd think leaping in with a legal claim might be a bit premature and expensive.

My suggestion would be a letter from the solicitor who is advising him, pointing out those legal claims including the relevant legislation/case law and requesting agreement to a neutral reference.

Did he explain the situation to his new employer and what was their reaction?

[StealthPolarBear]

thanks flowery, I thought that would be the case but not found anything spelling it out

[flowery]

A good way of thinking about it is that the contract of employment is in place whether it's written down or not, whether a piece of paper has been signed or not. Some of the terms and conditions of employment are/may be established by custom and practice rather than set out in a formal document. They are just as legally significant as those written down, but more open to dispute.

If an employer issues a set of terms and conditions that it intends to apply to the employment and the employee doesn't physically sign the document but carries on coming to work as normal, the employee would be seen to have accepted those terms.

[finefatmama]

The actual salary offered and subsequently paid is out of sync with the contract (he was paid quite a bit more) which is a favourable variation.

Apparently the legal advice was to go for constructive dismissal, discrimination (people with performance management issues and poor attendance records have been offered good references to leave asap and are all white women as far as he's aware, he's ethnic minority and muslim. 'Good' leavers were offered a promotion as incentive to stay but he was encouraged to leave and his admin person who undermined him and the boss's niece was called into the office and offered his job) , bullying and harassment, negligent misstatement based on events relating to the dispute of the contract and the conflicts between the boss and this person. Needless to say it was an open secret that they didn't quite get along and I'm starting to think they had an alpha male battle going on.

Thanks Flowery. Will have to slap across the head in an attempt to bring the brother to his senses.

[flowery]

If he resigned to go to another job there's no point claiming constructive dismissal as he wouldn't find it worthwhile. Compensation is based on financial loss only.

If he feels he was discriminated against before he resigned presumably he raised a grievance about it at the time? If the thing he feels discriminated against is the reference issue alone again I wouldn't have thought that would be enough to go on, unless he has actual reason to believe the bad reference was given because of his ethnicity/religion and can demonstrate loss/injury to feelings because of that.

I would really advise him to focus on getting the reference issue sorted then moving on.

[finefatmama]

Update - looks like they're going for a compromise agreement with some pay and a gag clause. there may have been more to it than meets the eye. thanks flowery - a little change in attitude goes a long way.