Can I be FORCED to work a notice?

[jobproblems672]

Hi,

I posted recently about handing in my notice in a job I hate. I was recently signed off for burnout and back pain which is ongoing and all due to my job. I also have a really long commute and long story short I am struggling to continue at this job.

I handed in my notice in mid March thinking it was 2 months. I misread it and it said 2 months effective from either 30th December or 30th april. So that means I have to stay until 30th June.
I already told my new employer I can start in mid May. It took my boss a week after I handed in my notice to tell me that I actually need to stay until July. Since then I’ve been in limbo about a start date as nothing was confirmed.

So I literally just sent a huge email stating that I’m really sorry, that I’m happy to serve a 2 months notice but I physically cannot work until July due to my mental and physical well-being.
She’s disregarded it and sent a short email saying sorry, your end date is 1st July and I can’t make this any earlier.

I can’t even sign off sick for the duration as I’d start my new job in May and that’d be illegal.

Am I wrong in thinking you don’t have to work a notice period? I literally explained that I can’t and won’t, and she didn’t take it for an answer.

Thanks

OP, if you are registered nurse or other registered HCP working in a school, do get advice on whether not working your notice could get you in trouble with the NMC or similar.

Also, if you have an email contact in each school, send them an email now to say that you have sustained a back injury and can no longer sit in a small chair. Please make sure that they have an adult sized chair available to you as otherwise your work will have a delayed start until a suitable chair can be found. Thanks in advance for their help on this.

@DogInATent

Easy to say, it's not your risk. It's very low risk/low cost to the employer to take the (former) employee through the small claims process.

It seems unlikely a case hinging on the reasonableness of such an unusual notice period would be assigned to the small claims track.

If the employer withholds their P45 until the end of the full period, it's going to be awkward to explain to the new employer.

How would that be awkward? The OP would just need to sort tax using her payslips and likely pay emergency tax for a month.

But why would they break HMRC regulations to be petty, what would be the gain?

I don’t get why, after you sending the email you did, your employer would still insist on you serving the notice period - even if you’re back at the moment you’ve basically told them that you’re going to end up signed off again. Surely it would just be better for them to cut their losses and try and recruit for a mid-term start.

Sympathies OP. Personally I would just tell them the date you’re leaving and then leave for the new job, if they want to sue you for breach of contract they can but I doubt very much they would. Plus, just because something is in a contract doesn’t mean it’s enforceable if it’s unreasonable and given everything you’ve said it sounds excessive to me.

I just looked and the same Safeguarding recruitment rules are i place in NHS settings too.

You might not be a teacher OP but you seem not to see how the notice period is mirroring school terms as that is what contract your employer be bound by in terms of delivering the service to the school.

It's not out of line with industry norms. It's completely typical for a school, which is where the OP works.

As others have said, she is a healthcare provider for a private company. The reasons for the unusual notice in state education (and the corresponding terms those employees get) don't apply.

You don’t HVAE to work it

What can they do if you don’t? They can’t fire you

They can however do something with regards to your pay.

Let me ask my colleague.

@TheKeatingFive

The only thing that happened was I had to write off my reference and I cannot tell you how hard that made life.

I wasn't in the position at all, I just used an older reference. I've never seen anything specified that the ref has to be your last job. Especially given the op has been there such a short time.

Every job I've ever applied for has asked for a reference from my current or last employer . Well, the ones post graduation anyway. As already mentioned, most organisations have a safer recruitment policy now.

OP, as others have said this sounds like a really strange term in your contract and I would doubt whether it is legally enforceable. However you really need to take advice from an employment lawyer on this.

If you are not employed by the school then why is your actual employer tying your notice period to school terms? Given that you are not employed by the school but are instead employed by a service provider then this again suggests to me that the contractual periods might not be enforceable. However I am not an employment solicitor and the answer to this is likely to be very specific to your circumstances.

If ACAS can't help you with legal advice and you don't have access to legal advice through a union, try speaking to the Citizens' Advice Bureau either on the phone or in person if they have an office anywhere near you. They may be able to point you in the direction of free/low-cost help.

Other sources for pro bono legal advice here:

www.lawcentres.org.uk/i-am-looking-for-advice

www.lawworks.org.uk/legal-advice-individuals/find-legal-advice-clinic-near-you

Most solicitors would offer a free initial consultation (up to 1 hour or so) and this may well be something that can be answered in that time, or at least they may be able to give an opinion as to whether your contract is clearly unenforceable or not.

Every job I've ever applied for has asked for a reference from my current or last employer

She's already got the new job

Get some legal advice as you cannot put clauses in a contract that is blatantly unreasonable.

Another thing to bear in mind is that even if you don't work your full notice period the employ cannot refuse to pay you for any work done, including any holiday pay they owe you, unless your contract explicitly says so.

They can however take you to court over costs etc. Is contact Acas though

@donquixotedelamancha
But it's not an unusual notice clause for the OPs employed role, which is specifically to provide a service in an educational setting. It doesn't matter that she's not directly employed by an educational institution.

It's a very reasonable argument that mid-term replacement with agency staff would incur additional costs as a direct consequence of her breach of contract which would then be recoverable from the OP. Is it a gamble you would take?

@DogInATent

As others have said, there is very little they can do. Are they really going to pursue you in the courts, highly unlikely

Easy to say, it's not your risk. It's very low risk/low cost to the employer to take the (former) employee through the small claims process.

If the employer withholds their P45 until the end of the full period, it's going to be awkward to explain to the new employer. The OP has a new offer of employment and hasn't told their new employer that they made a mistake and falsely assumed beneficial treatment (the OP was fully aware of the notice clause but assumed it wouldn't be applied to them before they asked for a dispensation).

In theory it is - but you’re coming at this more from the perspective of an individual suing a company, not the other way around. A company would be far more likely to take (potentially expensive) legal advice, use solicitors for claim forms, particulars of claim, directions questionnaires etc - even though the money claims system does make this very straightforward.

Also; there is pre action protocol to comply with. Again an employer, especially in a regulated industry, will likely at a bare minimum seek professional advice and more likely have this drafted by a solicitor. All costs money. And OP could respond to that; a prudent solicitor would then. assess this response and advise if a claim is commercially a sensible decision.

I think posters advising that the employer pursuing breach of contact legally is unlikely are very fair in their assessment.

She may have got the job but it is presumably, subject to reference. And yes in a healthcare setting I would hope for safeguarding reasons it’s with the most recent employer. Ie the one she is now in dispute with.

you need to double check the employee's manual and/or your contract for this info and speak with ACAS.

Apologies for jumping on thread but if I work in a school (not Teaching staff) but have to give a weeks notice and I'm employed term time hours would it be acceptable to give 1 weeks notice over may/June holiday time which would be more than 1 weeks notice I'm required to give but notice period is over the holidays?
I'm not directly employed by the school it's with the council but wondering if this would be ok

She may have got the job but it is presumably, subject to reference.

She may have already provided references which they're happy with

As mentioned no they cannot force you to work, but they would be able to seek legal damages from you for the period between when you stopped working and when the official end of your notice period is.

surely bollocks? What if you hand your notice in 1 May? you have to wait until December for the notice to start and so can't leave until the end of February? Nonsense.

Maybe its some weirdly worded thing around probation and length of service so after March your notice is 2 months but starting from when you hand your notice in?

this has to be a mistake and I cant' believe your manager/boss is thinkign its real

No, of course you can’t be forced to work your full notice period.

At worst, they can try to sue you for breach of contract BUT you have several counter claims you can respond with inc. ongoing lack of support causing you ill health.

There’s very little prospect that their claim would succeed in full, so I think you should resign asap. and make sure you see your GP to log your various mental health issues.

[quote jobproblems672]@MissLucyEyelesbarrow I’ll state again, I am not employed by a school[/quote]
But you are employed to work in a school. All the barrack room lawyers on here, arguing that your notice terms are unreasonable or unusual are ignoring the fact that they are normal in your working environment.

@TheKeatingFive

Every job I've ever applied for has asked for a reference from my current or last employer

She's already got the new job

No, she has a job offer. Assuming it follows normal employment practice, it will be conditional on references and usually on an OH assessment. It can be withdrawn if these are unsatisfactory.