My employer are threatening legal because I'm refusing to work my notice. How screwed am I?

[confusedlady10]

I know I am being a CF but have no choice, so this is NOT about morals and more about where I stand legally.

I've worked for my job for over 8 years (dead end call centre job) but leaving in a week as I got an offer elsewhere. The notice period is 3 months and didn't realise when I told my new employer because I didn't check my contract. Regardless 3 months notice for an entry level poor paid job is excessive, so it wouldn't have made much difference had I been aware as my new employer need me to start ASAP and wouldn't wait 3 months. I took the risk of my employer suing me as they are a multi-billion pound bank that can easily afford to replace me (and are actively hiring now anyway).

I've accrued 100 hours of holiday, and tried to use it up by booking on our work app but every date got declined due to them being short staffed. My manager called me and said they’d try and get around me leaving early by seeing if they can use my holiday or take it out of my final pay. However they said that after speaking to HR if they can’t then I’ll have to work my notice otherwise HR may go down the legal route and refuse to give me my p45 in order to start my new job. I emailed my manager later to tell them I’ve checked ACAS (after having second thoughts) which says they cannot legally use my holiday pay or pay to offset me breaking my contract and would have to sue me instead which I would have to accept them doing as I really need the money.

They haven’t replied so shall see what they say tomorrow (and I still have time to edit my message as it's out of hours and they haven't read it yet). Can HR legally refuse to give me my p45 for this or take my pay from me or refuse to pay me my owed holiday? And if they do take me to court which I cannot afford what is the likely-hood of me messing up my new job and references and do I have any legal help? I’m scared but don’t have a choice as my new job cannot wait 3 months for me to start so have no choice and only got my contract now to give my employer notice.

Many thanks!

Unless you are in a senior position I would expect your notice period to align with your salary period. So if you’re paid monthly. Then your notice period is 1 month.

3 months notice for a call centre??

Id think it highly unlikely they would pursue a legal battle!!

Your notice period will be in your contract if you have one. If you didn’t spot the 3 months notice when you signed the contract you can’t complain now. Just go sick if you can’t leave. However you won’t be able to start the new job.

Absolutely crazy right? And the threat of legal which is even more ridiculous but still scary.

Also it would be illegal for your employer to withhold your P45 or your holiday pay. Also they should not provide a negative reference (they could give a very basic one that just says how long you worked there).
It looks like you have close to 3 weeks holidays accrued. They should count these holidays in your notice period (if they hold you to the 3 months). Could the new place wait 6 weeks for you to start? Try and negotiate a meet in the middle compromise.

What can they do apart from take me to court as it's in my contract? I am starting my new job whether they like it or not sadly and pretty much told my manager so. It's HR who have come back to them with the legal threat and withholding my p45.

Go and see a solicitor. Most will give you half an hour for free.

It might be that your employment contract is unfair, 3 months sounds demented for a call center job.

I'd rather the risk of them suing me as ACAS says they cannot use my holiday to offset my notice and I really need the money. Is this risky?

How much do you need their reference?

If not at all just go into work and behave badly so they don't want you in the office anymore.

IANAL

I am fairly sure that even if they took you to court for breach of contract, any money that they tried to take from you would only be from any loses that they have had due to your leaving.

So it would be unlikely that they would even bother as the costs of going to court would be much higher than any loses from you leaving.

I’d say it’s unlikely they will sue you. But they do sound like absolute incompetents. 3 months notice is demented for a call centre role.
If I were you I’d speak to the manager & say you’re finding the treat of legal action extremely stressful (follow up with an email to create a paper trail). If they persist then go off sick immediately.

I doubt they have any intention of taking legal action but your manager is probably threatening that to manipulate you to work your notice.

Just keep repeating that your last working date will be X. See what they actually do and then challenge them if they don't pay you properly (based on acas advise).

I work from home aha. I don't get why they'd want to keep me anyway because I wont be working hard knowing I'm leaving. So it would just be 3 months of poor work. My manager is very nice and I had put them down on my background check as my reference so I told them they should be getting contacted next week which they were happy with. Will HR be involved/be contacted in the background check at any point and can they give me anything negative? I plan to work properly as normal and not take the piss for my remaining week.

Tbf my manager is lovely, they are just the middle man between me and HR and nothing personal and they have even agreed to my background check calling them as I put them down as my reference. I know we are very short staffed and the bank are always begging people to do overtime (and the pay is crap so no wonder they can't get people queueing up to work here). So should I proceed as normal and take the risks?

They have gone to their manager to see if they can use my holiday after we spoke on the phone earlier. I edited my message I sent after, removing the agreement of legal threat and told them I simply will be working until X date and they cannot withhold my holiday pay and will await for HR's response. They did hint that legal may draw something up (when I spoke to them on the phone earlier to discuss this) so I am scared they may follow through and it's risky.

3 months is crazy, they're not going to take you to court. I wouldn't worry about it.

1. they won't sue you
2. they can't withhold your P45
3. even if they do, you simply fill in a P 46 at your new employer, it doesn't prevent you starting
4. they cannot withhold your owed holiday pay

Sounds 100% a good move.

Breath, put your shoulders back and ignore them.

They are absolutely entitled to give a “negative” reference provided it is true.

And neither side can pick and choose which contract clauses they adhere to post signing - that’s the point of the contract. If the employer wanted to reduce the notice they gave her to below that stated in the contract I can’t imagine she would sit back and take it.

Most employers don't allow individual managers to do references so it would go to HR. As a BANK (financially regulated) they should not withhold a reference, especially if you are in a regulated role, and/or you're going to another regulated environment. They can say negative things, but nothing untrue. They're pretty unlikely to though, it'll be a basic reference confirming your employment dates.

They are absolutely entitled to give a “negative” reference provided it is true.

And neither side can pick and choose which contract clauses they adhere to post signing - that’s the point of the contract. If the employer wanted to reduce the notice they gave her to below that stated in the contract I can’t imagine she would sit back and take it.

your advice is really rather poor.

I had a similar situation and I actually worked at a solicitors office, so it would have been easy for them to sue me but even though they threatened it they didn't go through with it. I had already arranged for a sympathetic manager to give me a reference as I suspected the main Solicitors might have been awkward about it. It won't look good to other staff and prospective staff if they get a reputation for suing employees, I very much doubt they'll bother. The place I worked was hell on earth and I only had a very junior position, three months notice was ridiculous and I'd never have got a job elsewhere if I'd told them I couldn't start for three months.

Oh gosh. It gets worse.

What do you mean by "offset your notice"?

They can either give you the holiday to take, but you remain employed (no use to you, you couldn't start the new job still employed in the old one even if you were"on holiday"), or they pay it out. They should pay it out.

They won't sue you.

I've been in HR over thirty years and never seen an employer sue over a truncated notice period.

Ah I put my manager as the reference on my background check form I completed online (as it asked specifically for my line managers name and number). Then after it asked what date they could contact my reference and I selected one. So I take it they will still contact HR too?

If the contract says three months, it's three months.

My manager warned me off doing that funny enough, and the thought occurred to me. But I think calling off sick, lying and then trying to leave after is more complicated than it's worth and I can't be bothered to lie as my manager would know what I am doing and I am already morally on thin ice. I may have to stick to my guns? :(