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

No, she has a job offer. Assuming it follows normal employment practice, it will be conditional on references

Which she may have already provided, that do not include her current employer. Certainly that was my situation.

I think your employers are unreasonable. Though strictly speaking one does work a notice period, I've never heard of anyone who wouldn't waive it in certain circumstances.

From what you have said, you should be released from contractual obligations. How else can you start your new job?

It's not as if you haven't given them plenty of warning.

I once gave three months notice; my replacement was interviewed and appointed the day before I left and then never turned up for work on her start date! I wouldn't do that again in a hurry. I was also once released from a period of notice as I wasn't sooner and it was OK.

Just go and be done with it. Sod them. I hope you are happier in your new job and feel much better soon.

Good luck.

IANAL or employment specialist, but used to work in a policy area related to contract terms, and haven't RTFT. Reasonableness of the term would relate to the employer having stated a reason why it's there and whether the term is a proportionate way of achieving it. Also there's a general presumption that the other party tries to mitigate the loss if one party breaks the contract--eg if it would not be difficult to get a temp in for the period outside the 'allowed' period, this should be done rather than pursuing the breaker for the full period/ amount.

@jobproblems672

Annoyingly I might not have a leg to stand on as the job is the same job title. However it’s an hour closer to my home than my current job (so driving with my bad back will be easier), it’s a completely different environment (not in schools) which has caused me burnout in the first place for numerous reasons (I work in healthcare, different schools each day of the week, it’s extremely isolating, I don’t get treated as a member of staff by them, and I never see my team), and I won’t be forced to sit in kids chairs!

You should have spoken to the union about sitting in kids chair. They would have had to provide you a chair suitable for your back from a health and safety perspective.

@donquixotedelamancha

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.

At the (private) school where dh works all employees from the school nurse to the peripatetic piano teacher to the maintenance staff have to give a half terms notice by a specified date at half term to leave.

At the (private) school where dh works all employees from the school nurse to the peripatetic piano teacher to the maintenance staff have to give a half terms notice by a specified date at half term to leave.

If they're employed directly by the school, they would be in a different position to the OP who is not

@TheKeatingFive

No, she has a job offer. Assuming it follows normal employment practice, it will be conditional on references

Which she may have already provided, that do not include her current employer. Certainly that was my situation.

Companies with good recruiting processes will require a reference from the current employer. It's a big red flag not to provide one, unless there's a really solid reason.

Some are employed directly by the school, some eg catering staff are via an agency contract.

@MissLucyEyelesbarrow

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

Just like you then.
You clearly haven’t got a clue.
The place where she carries out her duties is within a school building, but crucially, she is not employed by them.
That is actually relevant.
Would you also argue that someone who is contracted to undertake plumbing jobs for the school must also work a terms notice too?

It is not illegal to be signed off from one job and work the other.

[quote MaudieandMe]@MissLucyEyelesbarrow

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

Just like you then.
You clearly haven’t got a clue.
The place where she carries out her duties is within a school building, but crucially, she is not employed by them.
That is actually relevant.
Would you also argue that someone who is contracted to undertake plumbing jobs for the school must also work a terms notice too?[/quote]
She has spoken to ACAS. Did ACAS tell her that she'd be in breach of contract? Yes they did

@TheKeatingFive

No, she has a job offer. Assuming it follows normal employment practice, it will be conditional on references

Which she may have already provided, that do not include her current employer. Certainly that was my situation.

And then when the OP applies for another job after 2 years and the references are needed for 5 or 7 (I've recently had to provide 5 years worth of references) or the previous employer contacts the new employer to revoke the reference due to unprofessional conduct, then what?

@LittleOwl153

Go back to your doctor. See if they will sign you off until the end of June. Explain the situation in that you have resigned your job but that they are insisting you work your notice which you don't feel medically able to do. If you can get your GP sign off they might be prepared to negotiate based on the fact that they won't have your time anyway but will still be paying you I assume.

Hmm, this sounds like you are suggesting the OP tries to blackmail her employer.

Honestly I'd just contact the new employer and explain what's happened re the notice period, they may well be happy to push the start date back.
If they do, then immediately go on sick leave for the rest of your notice period and take the time to rest.

I'm by nature pretty loyal, which has been to my detriment over the years, but do wonder what an employer thinks they'll gain by forcing people to continue in work they loathe.
At many employers, once you hand in your notice (or are given notice) your security pass is taken and you're given a box to pack your personal stuff up inyou're still paid for the next 2 weeks but you're not allowed back on the premises. Reason being that a disgruntled employee can do far more damagethat might not be immediately apparent--than a fortnight's further work would be worth.

@donquixotedelamancha

The OP's employers are contracted to provide a service to the schools. They need to know who they'll have working for them to plan to provide that service. It's the same for any employer - they can't provide a service without staff.

1. Two months is time to recruit.
2. The notice is out of line with industry norms and very disproportionate to notice the employee gets, so likely not enforceable.
3. Employer treats OP poorly.

More broadly:

Countries that enforce decent treatment of employees tend to have higher productivity than the UK. Employment is a very unbalanced market (in terms of power and market information) and a rebalancing might benefit the while economy in the long run.

I'm always surprised how many people are fine with the current state of UK employment rights- it feels like turkeys voting for Christmas.

I agree; the fact that terms like this are not actually illegal in the UK is shocking. The OP could potentially have to give nearly 8 months notice in order to leave a job that she has held for only 7 months.

How difficult would it be to amend UK employment law so as to prevent a contractual notice period for the employee being longer than that required of the employer? There could be a list of excepted occupations where longer notice period really is essential, and perhaps a minimum salary where that kicks in (e.g. 50k).

I wonder what the employers' notice period is here? Because by law it is only 1 week.

I agree that the terms is almost certainly uneforceable. Certainly under EU law it would have been unenforceable as it doesn't meet the proportionality test and even in English contract law, it appears to be acting as an unenforecable and not fully set out penalty clause.

Bear in mind too that employers in the UK are under no obligations to even produce a contract of employment but merely a statement of terms and conditions. So in these cases, acceptance is by implication. Thats really backwards. And its doubtful that the OP obtained independent legal advice before accepting these terms - another obvious reason why such a punitive notice period would be unenforceable.

I think posters should be required to give their qualifications and or job title when posting on threads like this. There are a few knowledgeable posters but I'm not sure how the OP can work out which ones they are in among all the ones talking shite! 🤦🏻‍♀️

I agree that the terms is almost certainly uneforceable. Certainly under EU law it would have been unenforceable as it doesn't meet the proportionality test and even in English contract law, it appears to be acting as an unenforecable and not fully set out penalty clause

Are you a lawyer?

See your Dr get a fit note to say due to back problems being caused by long drive and inappropriate chairs you are unable to work without suitable adjustments. They can't move you closer and are unlikely to buy new chairs for all the schools. Then you need a fit note to say you are fit to start new job.

How difficult would it be to amend UK employment law so as to prevent a contractual notice period for the employee being longer than that required of the employer?

I agree that UK employment law is generally weak but actually I think the proportionality test already does this.

People keep pointing out schools as a gotcha but forget the reasons education is unusual:

• Schools can't easily recruit teachers at short notice because most of the sector has similar terms.
• Teachers notice periods, from their employer, are longer to compensate for this.

Even in a school a member of non-classroom staff who gets 1 month's notice probably couldn't be held to a much longer notice period because there is no valid reason for it.

The problem is a culture where, no matter how poorly an employee behaves, a lot of people feel that employees should accept it, rather than fight their corner.

@ancientgran

See your Dr get a fit note to say due to back problems being caused by long drive and inappropriate chairs you are unable to work without suitable adjustments. They can't move you closer and are unlikely to buy new chairs for all the schools. Then you need a fit note to say you are fit to start new job.

Then sit back and wait for the new employers to withdraw their conditional offer of employment because you've been signed off sick for months.

Why would the new employer think she'd been off sick for months? She would have two fit notes one saying she can't do job 1 from x date and one for job 2 saying she is fit from x date. She hasn't actually been off at all, just not able to do job 1 due to conditions like the unsuitable chairs.

@ancientgran

Why would the new employer think she'd been off sick for months? She would have two fit notes one saying she can't do job 1 from x date and one for job 2 saying she is fit from x date. She hasn't actually been off at all, just not able to do job 1 due to conditions like the unsuitable chairs.

The point being she can be unfit for one job and fit for the other at the same time.

I am a lawyer and I do some employment law.

They cannot force you to work your notice in the semse that no court will order you to turn up evety day. You can simply resign without notice or say you will not work notice after a particular date. There is nothing physically they can do to prevent this.

They can sue you for breach of contract, which could result in a costs and damages award against you. In most jobs, it would be very difficult to prove that they have actually incurred any loss because you left after say four weeks not twelve.

Or if you are suffering from burnout you might wish to resign with immediate effect ajd allege constructive dismissal. I doubt, if faced with a cogent basis for a claim, that they would risk action against you.

@donquixotedelamancha

How difficult would it be to amend UK employment law so as to prevent a contractual notice period for the employee being longer than that required of the employer?

I agree that UK employment law is generally weak but actually I think the proportionality test already does this.

People keep pointing out schools as a gotcha but forget the reasons education is unusual:

• Schools can't easily recruit teachers at short notice because most of the sector has similar terms.
• Teachers notice periods, from their employer, are longer to compensate for this.

Even in a school a member of non-classroom staff who gets 1 month's notice probably couldn't be held to a much longer notice period because there is no valid reason for it.

The problem is a culture where, no matter how poorly an employee behaves, a lot of people feel that employees should accept it, rather than fight their corner.

Ah but the average employee (as shown by this thread) doesn't really understand the proportionality test never mind the case law interpreting it. So I would still argue in favour of amending employment law and putting it in black and white.

Agree totally with your last paragraph.

So the way a job offer works is:

The new employer makes a conditional offer. The offer is conditional on proof of right to work in the UK, professional qualifications if applicable, references and fitness to work, usually demonstrated by an OH assessment. The offer can be withdrawn if any of these things are unsatisfactory.

The employer will usually ask for a reference from the current employer, and the reference will typically ask for the number of days off sick in the last year or 2 years.

If the prospective employee has been signed off sick for a large period of time, prior to the new job, and the new job is the same sort of role as the old job, this is a huge red flag (unless it's for a one-off thing like a broken leg). It suggests that the employee is not fit enough to do the job.

Even if the OP's current employer has already given a reference, the new employer will probably arrange an OH assessment, which will include the OP having to declare whether she has been off sick.

So the new employer finds out that the OP has been off sick either way. And can withdraw the offer.