To tell employer to do one

[Onlyjudycanjudgeme10]

Was on maternity leave and due to go back end of July. Due to Covid I have been unable to go back into the office and work due to not being able to be socially distanced. The work I do I could do from home but our company does not want to do this.

I was unable to be furloughed as was after the cut off date and as no one else was furloughed from the office was ineligible.

I have been without pay now for the last couple of months and with no return date yet set decided to look elsewhere for work. I have managed to find something and when I told my boss, he has told me that I have to “work” my notice period despite the fact that I cannot go into the office.

Am I being unreasonable to tell him to do one and unless he asks me to go into the office for the month or pays me that I should start my new job straight away.

I would check the legalities first but to me it sounds like they are not honouring your contract (by not paying you / allowing you to work) and therefore you should not have to honour your notice period.

They aren't paying you, just go. You don't owe them anything.

Struggling to understand your current status at work
Are you refusing to go in and they have put you on unpaid leave
Or are they refusing to let you return
In which case you probably could claim against them
If you got enhanced mat pay they probably will come after you for that
If not they are extremely unlikely to come after you but you are unlikely to get a reference
Government advice to WFH is advice only and employees can't insist on WFH
There's a big disconnect between employees thinking they are doing a great job WFH and employers thinking best for Company overall if staff get back to work

It’s not about what you think it’s reasonable. It’s about what you and they are bound by under contract law. You need advice. I’d talk to acas in the first instance.

If it is their choice not to let you go into the office to work or if you can evidence why it isn't safe you may be able to tell him you will counter sue for constructive dismissal? I'm not HR or an employment solicitor.

It depends who's choice it is that you aren't in the office.

Have they told you that you can't come in due to social distancing or have you decided you can't go in? If so why? It reads like everyone else is in the office except you?

How will they know?
If you’re current “work” for them involves you staying in your house, not completing any tasks and not being paid for it then how will they know whether you’re doing that throughout your notice period or not?
Frankly, you can do that much for them while in someone else’s office.

*your current work (not you’re)

Is the office actually closed/you can't go in, or is it open but you are not content they have put in place the right measures to be 'covid secure'? If it's the former and there is literally no way for you to work, then that is not your fault at all, and unless you agreed to an unpaid mat leave extension, surely the clock has been ticking since your 'return' in terms of not having to pay back any enhanced mat pay if that's what he means. If he is referring to a normal notice period, there are actually legal minimums as to which they have to still pay you sums due even if below your contractual period, but as you aren't working or being paid anyway I am not really sure what benefit to the business having you on the books is. But for your new employer if worst come to worst can you just say I have to give x weeks notice?

If it's the latter of course you are reasonable if it genuinely isn't in line with guidance, but the push back might be more from them, but again, contact acas maybe, but have a look at the legal notice periods anyway.

How will they know?
She will need her P45

To sue you for breach of contract they would have to demonstrate financial loss.

They’re not paying you, so they can’t.

Tell them to fuck off and start your new job when you can

(I breached my contract once by not giving the required notice in a pretty highly paid job. where my employer is notorious for treating their employees like shit. Absolutely nothing happened).

Ring ACAS. Whole thing is weird.

How are you still employed if you're not working or being paid?

Who's decision was it that you can't go into the office? What arrangements is your employer proposing for you working your notice? It all sounds very odd.

The work I do I could do from home but our company does not want to do this.

Had everyone been told they can’t WFH or just you?

Your manager sounds spiteful.

Speak to ACAS.
www.gov.uk/government/news/parents-returning-to-work-after-extended-leave-eligible-for-furlough

You may well have been eligible for furlough

So everyone else is going into work to work, yet you've decided to not go in because you cannot socially distance?

Did you report your organisation to BEIS for unsafe working practices?

I am assuming they have put measures in place to keep people safe and you have decided that it isn't safe enough for you - you are already in breech of contract.

Unless you are vulnerable or at risk you should be in working like everyone else who cannot work from home.

I’m assuming it’s your choice not to go into the office? Is there a particular reason such as shielding? Whether they are reasonable or completely unreasonable depends on the context.

HR bod here. If you don't want to work your notice, most employers will not hold you to it (unless you are in a critical role/doing critical work which seeing as you've been off I don't think would apply) but you can't expect to be paid for a notice period you don't work.

The most you can expect is to explain that you have a new role and can your notice period therefore be waived. If he's done without you this long i can't imagine he'd say no to this. He may want you to do some sort of knowledge capture depending on they type of role you do.

Technically yes employers can sue for breach of contract in these situations but its vanishingly rare unless you are very senior and leave them in the doo doo. So if he says no you could just walk

If the OP was eligible for furlough can she insist on it
I didn't think you could

Is there a possibility that they are pocketing furlough money that they are claiming for you? I don't really know how furlough money works because I've never been eligible through my work.

Also if you're basically sitting at home doing no work then surely you can just say that you'll work your notice period for that month at the same time as starting your new job. He won't have a clue what you're doing as there is no work for you anyway.

@user1487194234

If the OP was eligible for furlough can she insist on it I didn't think you could

You can't. It's the employer's choice

So you’re being asked to work notice, for which you’re not being paid? I would speak to someone legal about this, because I’m pretty sure they can’t just stop paying you because they can’t accommodate you in the office. Unless of course you’ve put yourself in that position by refusing to go in.

You need to explain more about why you can't be socially distanced in the office and what you aren't going in and aren't getting paid.

The office is open and my colleagues are all in, my boss called me just before I was due to go back to say not to come back yet as there is no desk they can put me on where social distancing can be maintained (it’s a very small office) my desk was right by the kitchen and toilet so everyone would have to literally brush past my chair to use those rooms. It was not my choice not to work, I’m not shielding and although I was happy to begin with to have what I thought would have been an extra few weeks at home with my DC has now turned into not knowing when I’m going back, hence why I have looked for another job.