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!

@confusedlady10, bear in mind that if you start your new job without being able to give your new employers your P45, you'll likely be on an emergency tax code with no tax-free earnings until you are able to provide one.

What can they do? They can contact your new employer to say you’re still legally an employee of X Bank and contractually obliged to work there. New employer will be unlikely to take you on in these circumstances

Yes, it’s risky. If they offset your holiday pay, notwithstanding the legality or otherwise of this, what are you going to do? Issue a claim in an Employment Tribunal?

You should expect a reference/background check to be routed though HR, particularly in a large financial institution

I would expect the losses to be confined to the costs of getting in a temp to cover OP’s role, given they’re short staffed. Or cost of overtime of existing staff taking in the slack.

Like you, I would not expect the threat of legal action to be followed through (although the risk cannot be entirely discounted)

Are you sure you are reading your contract carefully ?
You say notice increases each year . I am aware of contracts like that - coffee chain my daughter worked in but that was the employer notice not the employee notice which was based on how they were paid ( 2 weekly was 2 weeks notice )
Manager was insisting on 6 weeks notice not 2 , though in that case DD pointed out correct wording and HR agreed with her ! They were short staffed too .. ….

I have seen employers contact the new employer to say that X is still under contract and that to hire them before Y date (end of notice period) would be seen as inducing a breach of contract. Potentially rendering the new employer liable. That threat usually has the effect that the new employer will not take on the new employee during their notice period (if at all)

Thank you. My manager genuinely isn't the issue. They are not causing any trouble, and happy to be my reference and are so pleased for me (I hope unless they are very good at being fake!) It's their manager who may be stressed as they deal with managing the call queues and staffing and know we are short staffed and HR who are threatening everything. This I am sure of. They said they have chased HR as urgent, so I reminded them that I called ACAS and now know my rights and what HR can't do (but didn't mention their legal threat). My manager has now read this final message and not replied yet. Thank you.

OP also went on a course that she needs to pay back the costs for? have i read that right?

Whenever i went on a long course i was expected to sign a document commiting myself to x years at the company or i would have to cover the costs (proportionally to how soon i gave notice).

I do wonder, though, because i see it a lot here, why so many people don't have their contracts? Or haven'T read and inwardly digested them?
(also where i am - not UK - written references are still the norm. So that would be an issue because while they have to give you one - they might just write "confused worked for this company from x date to y date" and that is almost worse than no reference at all.

What's the point in them doing that if I am still refusing to work for my current employers further anyway? I am willing for them to sue me for breach of contract.

Get on to an employment lawyer. Work out what the worst case might be. See if you can live with that.

OTOH if you have signed a contract with the new employer and don't start, they can also sue you?

You can find most of the information on a p45 on your tax account. Just tell your new job you don’t have a p45 and they’ll give you a form to fill in. Worst case: you pay emergency tax for a bit . But it will be sorted.

As for them suing you: it’s unlikely. It’s not worth it. If you had longer than a week left, I’d be dropping hints at the stress all of this is causing you (hinting you might go on the sick).

People can write what they want in a contract. Doesn’t mean it’s fair or even legal. Start your new job and good luck!

@confusedlady10 Didn't you post recently about an expensive bridesmaid trip to Thailand and vehemently defended the cost as affordable?

Could you ask to do some longer shifts to increase the number of hours that you contribute in the remaining time you are there to balance it out?

People can write what they want in a contract. Doesn’t mean it’s fair or even legal.

Wow! One of the most stupid things I read on here recently. Contract is a legally binding document. HR absolutely can and likely to give a negative reference, e .g. "left in breach of contractual notice".

Some business would sue OP to make a reference case for the remaining employees not to mess about. Given it's a big bank I'm sure they have hot lawyers to deal with this. Well worth the money IMO to ensure employees stick with their contracts.

Other than your last sentence, this is nonsense and legally incorrect. And, yes, I am a solicitor

I don't think there's much they can do OP, assuming you're not expecting to be paid for the notice you're not serving.
How they pay your holiday pay, or whether they deduct the course will apparent soon enough.
If you're due to be paid soon, assume that covers you up until your leave date? Or would they still owe you for days worked in your next pay?
I'd expect your next pay to include any days owed which weren't paid in the current pay, plus your 100 hours holiday pay, minus the course cost. By that point you'll be well into working at the new place.

Are you minimum wage? The course cost would swallow up most of the 100 hours anyway.

Even if they do withold your P45 the new employer will use an emergency code, which does mean you will pay more tax but you can claim this back via a tax return submission to HMRC later.

Your old employer has to give you the P45 after their 'disputed notice period' is over as it is illegal for an employer to withhold your P45. So worst case scenario you pay extra tax for the first couple of months in your new job, which you can claim back anyway when the P45 comes. A bit of a pain but not impossible

They are being outrageous BTW to expect 3 months notice for a call centre job

As for suing you, I think that is very unlikely !

Particularly given that references now include as standard a ‘no reliance’/no assumption of liability clause to mitigate the risk of claims by departing employee / new employer

What a random figure. It could be more. Or a routine overhead expense if the bank’s Legal department routinely churn out small claims

I don’t think you are wrong for not working a 3 month notice period but you are being very unreasonable expecting to leave straight away and get paid your holiday pay. You take as much of the notice period as you can as holiday.

To be honest you sound naive/dumb. You’re blindly trusting your “lovely” manager. Don’t you realise you fucked over that manager? They are being nice to your face and probably cussing you behind your back. Legal action was a threat, not them kindly keeping you in the loop. Of course, they aren’t going to be as lovely as you think they are. They enthusiastically want to get involved with the reference process with your new employer - why? I would be concerned about why they are so willing to be involved with that, the sceptic in me is wondering if they will have a more frank discussion with your new employer than you have anticipated. In fact, I think you’re handling this in a strange manner - if your current employer gives a red flag reference to your new employer, the new employer will rescind the job offer. I don’t think you realise what you have at stake here.

Yeah - the half hour free legal advice has pretty much the same status as the legendary Mumsnet chicken feeding a large family with hollow legged right playing teenage boys over multiple meals.

Citizen’s Advice can provide free legal advice. And an employment solicitor may speak with OP without charge purely for the purpose of understanding the background in order to be able to provide a quote for legal costs

You don’t need a P45 for a new job. Just fill in the new starter’s checklist.

Is the most likely worst case scenario therefore that OP has to pay emergency tax for 2-3 months?

which she would probably be able to get refunded next year.

they probably want her off PR anyway so that headcount is correct for recruitment