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, they’re not generally enforceable

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.

That's true in many areas of law and part of why everyone should consider union membership. I don't disagree I just think there are areas (like teachers) where exceptions might be needed.

If employment tribunals could still be accessed by all, they way they were a decade ago, then employers would be less willing to take the piss.

I think , legally, the only notice you need to give is equivalent to your pay period....weekly payment =1 week notice, monthly =1 month. Particularly because you haven't been there long. You won't have accrued much holiday pay if you've been off so much so you can't lose out on much

Update: I sent another email stating that I’ve been very open about my personal circumstances. I didn’t want to leave them in the lurch by just walking out, but I can only serve the 2 months and no longer due to my ill health. Thought it’d be best to negotiate an earlier date than be signed off. I again said that unfortunately I cannot work the full notice.

She’s replied saying unfortunately the new person can’t start until July so I have to stay. And that they will continue to support me as I am a much valued member of the team.

I feel as if I haven’t been listened to at all and genuinely forced to stay, I’ve sent 2 emails now saying I can’t work the full period and that I will work until a certain date because I am unwell

@vivainsomnia

You are breaching your contract by not honouring your notice period. They of course can't force you to do so.

Your risk is they employ an agency worker to cover you and they could legally take you to court to claim the extra costs the agency cost them.

This only very rarely happens, but legally, it would go in their favour if they opted to do so.

This.

Legally, you are required to work your notice period, it’s something you have already agreed in writing to do. Some employers waive this but the majority don’t. Obviously they will not physically drag you to work.

If you choose not to turn up, you’re in breach of contract ans it’s up to them whether or not they sue you (I’d be surprised if they did but 🤷‍♀️ up to them). If they’re feeling angry I suppose there is a (small?) risk that they might call your new employer to warn them that you are still legally employed elsewhere.

The medical stuff doesn’t help you legally because you can’t be signed off sick from one job while starting another.

It’s tricky, I do sympathise, but the legal position is clear.

What would I do? I would ask an employment lawyer for their view. Then I would have a chat with new employer and see if I can start later. If they say no I would chat to current employer and say that while I want to leave on good terms, I feel physically and mentally unable to do the job until the end of the notice period and am giving them notice that the contract has come to an end early as it is ‘frustrated’ by my inability to do it. And I would become such a total pain in their backside that they let me go early.

You can sign off sick but i cant see them changing their notice or everyone will want to do it

My point is youre not going to get full pay

All my admin staff are on 3 months notice, in accordance with a head office requirement. Over the years 4 have left and although they have signed to accept this term none of them are ever prepared to give more than a month's notice. Nothing happens, I've never heard of anyone being sued or having pay docked (which would be illegal without specific authority anyway.)

Oh, just to add, no one is "signed off sick" these days, your G.P. gives you a "fit note" so it is perfectly possible to be fit to do one job, which is within the remit of what your G.P. has said you can do, but not fit to do another which is covered by it. An obvious example would be to be unfit for a gardening job but O.K. for an office based one.

@jobproblems672

Update: I sent another email stating that I’ve been very open about my personal circumstances. I didn’t want to leave them in the lurch by just walking out, but I can only serve the 2 months and no longer due to my ill health. Thought it’d be best to negotiate an earlier date than be signed off. I again said that unfortunately I cannot work the full notice.

She’s replied saying unfortunately the new person can’t start until July so I have to stay. And that they will continue to support me as I am a much valued member of the team.

I feel as if I haven’t been listened to at all and genuinely forced to stay, I’ve sent 2 emails now saying I can’t work the full period and that I will work until a certain date because I am unwell

They're trying it on. Could CAB help? I really think that Jan/April thing can't be enforced.

Does your new employer know the circumstances?

The trouble is that your employers will be thinking you are only wanting to quit now because you've got a new job and it suits you to quit now and that if you were ok to do two months notice period why can't you do three months??

You can see there point of view even if it's not helpful.

Have you explored any other ways to improve the job, I'm sure there must be a way so that you don't have to sit in little children's chairs for example.

Their not there*

Also, if this damaging your mental health, your GP can say that.

I think you need HR or legal advice. Hope it can somehow be sorted out.

@WhyBeMeanLikeThat

The trouble is that your employers will be thinking you are only wanting to quit now because you've got a new job and it suits you to quit now and that if you were ok to do two months notice period why can't you do three months??

You can see there point of view even if it's not helpful.

Have you explored any other ways to improve the job, I'm sure there must be a way so that you don't have to sit in little children's chairs for example.

There's no logic in the 2 months vs 3 months that I can see.

@MissLucyEyelesbarrow

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.

If the OP gets a fit note from the doctor saying she is unfit for that job from 31st May and starts her new job on the 1st June she won't have been off sick for months.

Have you explored any other ways to improve the job, I'm sure there must be a way so that you don't have to sit in little children's chairs for example

The OP mentioned this in her other thread, I think they've simply ignored her needs.

OP go to your GP (hopefully you can get an appointment to discuss asap at least on the phone) and explain the situation. Say that this job is bad for both your mental and physical health for the reasons given here, but the new one is a different sector and closer and will be fine. So you need a differentiated fit note which says you can't do this job but you should be fit to do a different one.

I have no idea if the above is an option, but it is worth a try at this point. This guidance says they will look at your ability to work in general, not just the job you are in: www.gov.uk/government/publications/the-fit-note-a-guide-for-patients-and-employees/the-fit-note-guidance-for-patients-and-employees

If the GP will do it, then you can give it to your current employer, leave when you want to, and start the other job legally.

I also think sitting in little childrens' chairs would be bad for most peoples' backs!

@ExConstance

Oh, just to add, no one is "signed off sick" these days, your G.P. gives you a "fit note" so it is perfectly possible to be fit to do one job, which is within the remit of what your G.P. has said you can do, but not fit to do another which is covered by it. An obvious example would be to be unfit for a gardening job but O.K. for an office based one.

Exactly.

OP you can't be forced to work your notice, but you might be in breach of contract. Whether they'll pursue that, I think is probably doubtful as not much point in you being there if you are off sick throughout your notice. Also your very short service.

I had a team member of mine, who was off a lot with mental health issues. I was aware she was looking for another job, and when she got it I was happy to accept no notice, as she wasn't likely to be at work and it opened up a vacancy where I could recruit someone sooner.

It worked out for me but unfortunately her issues followed her and she's off sick from her 2nd job, released from the first. My point being, as long as you are fit to move on then that's your decision.

Thing is I have accepted I am in breach of contract and apologised profusely but I just can’t see out the time. Either I finish in May or I sign off sick which isn’t in the best interests for anyone.

She’s still saying I can’t leave and that im a valued member of the team…

@jobproblems672

Update: I sent another email stating that I’ve been very open about my personal circumstances. I didn’t want to leave them in the lurch by just walking out, but I can only serve the 2 months and no longer due to my ill health. Thought it’d be best to negotiate an earlier date than be signed off. I again said that unfortunately I cannot work the full notice.

She’s replied saying unfortunately the new person can’t start until July so I have to stay. And that they will continue to support me as I am a much valued member of the team.

I feel as if I haven’t been listened to at all and genuinely forced to stay, I’ve sent 2 emails now saying I can’t work the full period and that I will work until a certain date because I am unwell

Dear boss, Unfortunately that is not possible. Therefore, my last working day will be xx/yy/zz. Best wishes, Ex-employee

@jobproblems672

Thing is I have accepted I am in breach of contract and apologised profusely but I just can’t see out the time. Either I finish in May or I sign off sick which isn’t in the best interests for anyone.

She’s still saying I can’t leave and that im a valued member of the team…

OP my HR department have given us standard wording to say if people don't want to work their notice so your boss might be blindly following that. They need to consider your needs as an individual and how this is making your situation worse.

@jobproblems672

Update: I sent another email stating that I’ve been very open about my personal circumstances. I didn’t want to leave them in the lurch by just walking out, but I can only serve the 2 months and no longer due to my ill health. Thought it’d be best to negotiate an earlier date than be signed off. I again said that unfortunately I cannot work the full notice.

She’s replied saying unfortunately the new person can’t start until July so I have to stay. And that they will continue to support me as I am a much valued member of the team.

I feel as if I haven’t been listened to at all and genuinely forced to stay, I’ve sent 2 emails now saying I can’t work the full period and that I will work until a certain date because I am unwell

In that case you appear to have three options:

1, Suck it up & comply with your current employer’s demands.

2, Persuade your GP to declare you medically unfit for work.

3, Walk and accept the potential consequences.

What is not an option is getting your current employer to do what you want them to because they don’t have to do that.

No one can force you to do anything as you’re in control of your own body. I haven’t read the full thread but I’m sure there’s a few comments stating you could be sued for breach of contract etc.

You definitely will be in breach of your contract but very rarely do companies ever take it further. I’ve probably had 3 different roles where I’ve been management and I’ve either given my notice effective immediately because I hated the job and everyone there or I’ve said ‘X day is my last day’ even though I know it was meant to be a later date. Nothing has ever happened. They tell me I’m not allowed and I still leave. By law they have to give you a reference. It may not be a good one but it’ll just say ‘I can confirm X worked here from this date until this date.’

Don’t kill yourself over a job you hate please. You’ve told them what day you can work until and that’s it. You are in the wrong and are in breach of your contract but you’ve got a new job now and I’d just focus on that