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!

No it doesn’t! Small claims is dirt cheap.

Is it holiday or TOIL? There seems to be some confusion.

Incorrect. A regulated financial services firm is only legally obligated to provide a reference in respect of a role where the employee will be carrying out a regulated function. Which tbe OP, as a call centre worker, will not be doing so

If they take OP to court (and yes, it's cheap and easy), the record will stay on OP's credit report and will likely to bite her at some stage

I'm retired but was a senior HR manager. Never tried to hold an unhappy employee who wanted to leave, what's the point? Particularly if they are dealing with customers face to face or by phone, who wants an unhappy disgruntled employee representing their company?

Having said that a week after eight years is on the cheeky side.

Companies tend to be worried about giving negative references these days as employees can take action on that situation and companies have had to pay up. If the company threatens anything keep a copy of their email and let ACAS know. To my mind they are calling your bluff. If you went to a tribunal I am sure they would ask is 3 months reasonable for a call centre person to give notice. no is the answer because people are taken on and paid monthly. The tribunal tend to favour the employee and would wipe the floor with them I think you are doing the best thing you can as whichever company you are with sound terrible. I have never come across a contact centre wanting 3 months notice. They sound very unreasonable, I hope you enjoy your new job. It sounds very stressful in your present company. I think it is terrible they have not allowed you to take holiday as people need a break from terrible companies like they are. All the best OP.

The point?

1. it may ‘encourage’ the defaulting employee work their notice (even though it may not be having that effect on you)
2. it sends a message to other staff thinking of doing the same - I mean, imagine if a significant number of staff just decided notice periods were optional and can be ignored with impunity
3. it is standard policy and process in some large organisations

Not sure if this has been asked already (long thread) but how much notice do they have to give YOU in your contract? I understood that for a contract term to be enforceable in instances like this it had to be fair, so it would be unfair to have to give them 3 months notice but they only have to give you 1, for example.

Edit: duplicate

You obviously aren’t familiar with the law - specifically contract law. I’ll try to use small words to help you.

Not all contracts are legally binding. For example, if I make you sign a contract to do something illegal- it’s not binding. So drafting up an employment contract to be a drug dealer wouldn’t stand up in court.

Contracts also have to be fair. Fair to both parties. So requiring one party to give excessive notice while the other doesn’t could be seen as unfair.

There are also some very clever legal people who have got very well written contracts broken. A contract is only as good as the people you have defending it.

I won’t be rude and call your response stupid, but do let me know if you need something explained.

Hand your notice in for 3 months time. Get a 3 month long sick note for work related stress. You can work two jobs and be off sick for one and work at the other as long as it doesn’t contradict the reason on your sick note. If that specific job is causing you stress then what can they do 🤷🏼‍♀️ Your new job will just be taxed as a second job until you leave the first.

Tell them if they’d like you to change your notice to earlier then you will. Job sorted. I’ve worked at plenty of jobs where people have been signed off sick with stress right up to their notice date.

I think this thread needs to be highlighted as an example of why MN legal advice should not be taken as correct.

It seems that many people think that the law is what they wish it said rather than what it actually says.

I work in a call centre taking back to back calls. If we aren't on the phone, they will know. And our screens and audio are recording us at all times during all calls. So not working is out of the option sadly. Either way I don't care as I am still leaving by my date so will just work hard/normally. I just spoke to my manager on a video call just now. They have told HR what I told them from ACAS so I think they realise I'm not stupid and may drop trying to take my holiday from me and p45.

My manager said they will speak to their manger and see if they will just let me leave when I want with no stress and agreed it would be in the bank's best interest and will try and fight for me. They did say however, that it may fall back on their manager AND HR and if either don't agree due to the business needs, legal may draft up a letter. I told my manager politely that legal can pretty much do that and I am still leaving if it boils down to it. My manager is lovely and is said based on that they are now waiting for a response from their manager and HR and the next steps and will update me further.

I think the chances of them taking legal action is slim. If they do they have to prove a connection between your leaving without giving notice and any financial loss they experience because of it. If they are a big bank it is highly unlikely that someone from their call centre will make any difference to their finances! It would cost them more in legal fees.

Also, they cannot refuse to issue your P45 when you are no longer working there. If they do - report them to HMRC who will deal with it. And in the meantime you get a P46 from your new employer.

They don't know my new employer and as far as I am aware background checks aren't obliged to tell them because of privacy reasons? Unless I am completely wrong? The recruiter who got me my new job called me and I discussed what was happening. He said its extremely normal to not work my notice and that the background check and new employer are more concerned about whether I worked where I say I did and less about my issue with resigning.

He said as long as I explain me leaving early from my notice period to my new employer if the background check flags up any negative reference from me breaching my contract (if it goes to that) then it should be fine. After speaking to my manager, ACAS, him and reading these comments I feel slightly more relaxed. Will await HR and my manager's manager now. The ball is in their court so I'm praying they just let me leave (and my manager agrees that would be best too although it's not down to them).

But if I don't physically work they are gonna have to waste time and money suing me anyway and could just use that time to hire someone. I get it, but seems a lot to just not let me go. I will not be working past my date and told my manager firmly that HR can do what needs to be done if it comes to it. My manager says that they will try and fight to let me go and make it easy for me. Praying!

Saying "People can write what they want in a contract" does not make you look familiar with the law. And your response does not make you look competent.

There are fringe cases when a contract can be accepted as unfair and unenforceable, but it's a big leap to say that an employment contract template written by a large bank for thousands of employees was not validated by competent lawyers.

As PP said, the bank can take OP to court to make a point for remaining employees. This will damage her credit score.

ACAS said I don't have to. I am willing for my employer to sue me. I know I am being a CF 100% and I know I am in the wrong and don't deny it at all. I just genuinely don't care. I was desperate to leave and need more money and can't risk losing such a good job. My employer are hiring now anyway so it shouldn't be hard for them replace me. Lets see what happens!

Just wanted to say that a 3 months notice period is actually there to protect you! If you got made redundant your employer would have to pay you 3 months notice. I know how much redundancy pay I’d rather get.

Back to the issue. I doubt you’d be sued, but not sure why you won’t meet them half way. Use the holiday time you’re accrued and agree to leave after 6 weeks, then agree to start with your new employer in 6 weeks time. All friendly. No bridges burnt.

The recruiter will be pushing you to go asap because he wants his commission! The new employer likes you and wants you, so waiting 2 weeks really shouldn’t be a problem.

That's what I want it to do, so they don't take it out of my pay. I want my holiday to offset the course rather than them taking it from me for leaving early. They haven't brought up the course, but I am fully aware of paying it back.

Thank you. I know it is. I am desperate and had only been given my contract recently so I know I am a CF and deeply apologised to my manager and everything anyway, they were lovely. It's HR and my managers manager that may not want to accept so lets see!

I work in HR in a senior position. I would recommend you reach an agreement that works for your new employer and old employer. Explaining the notice was an oversight as you had assumed it would be one month. Your current employer should (but not required) allow you to take your hols to cover some or all of your remaining notice period or they will have to pay you for unused vacation (assuming your vacation time does not straddle the end of a ‘holiday year). However if they won’t play ball, ensure your letter of notice clearly states your intended last day of employment with them, ensure your new employer is aware of the issue (current employer is bait veing flexible). Your current employer can only sue you for losses they incur if you don’t work your notice (for example, they lose a sale because you leave early, they have to pay an agency for a consultant to cover your role at a higher rate, so it’s unlikely they will do this). In stating the above you signed and accepted a contract to give 3 months notice & you should honour this, if I was your new employer I would be very unhappy with your intent not to honour the notice period of your current because it’s an indicator of your integrity!!!

Having 1 less person on the phones in a call centre makes virtually no difference at all to somewhere that will literally have 100's of people on calls. Yep calls can get routed to people with certain skills but it still makes very little difference in the big scheme of things.

The comment you replied to did not state that it was unenforceable - it merely commented that it was unusual to have a 3 month notice period for an entry level position in a call centre - which it is.

Your current employer will know who your new employer is, as your current HR will need to give you a reference. Your manager won’t be allowed to give you a reference and will be obliged to pass it along to HR. This is standard corporate practice and it’s surprising your manager doesn’t know this.

Also, theres a long way between three months notice and one week. If you did one month and argued the contract was unreasonable you might get away with it. At one week you are increasing the chance of it ending badly. You will forever more have this employer on your cv, and all future employers will have the right to approach HR for a reference. I wouldn’t consider risking this and would bend over backwards to come up with an agreement.