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!

Firstly, an employer can't use this to make a point to other employees. It's confidential.

Secondly, your credit "score" is meaningless and is viewed by nobody except you. Your credit history is what others can see, and they score you using their own, private criteria. If the OP was taken to court and received a CCJ it still doesn't impact anything to do with her credit file unless she fails to pay a judgement within 30 days.

Litigation is not confidential. If you get sued that is a matter of public record, as is the judgment against you if you lose.

There are almost certainly clauses about second jobs requiring permission.

It's public record, that does not mean an employer can use it as a lesson for other employees. They can't say "we sued OP because they didn't work their notice, so be careful."

I suggest you find an employment lawyer/ HR specialist. You can find someone on LinkedIn, rather than relying on the ‘experts’ on Mumsnet.

I’m trying to tailor my answer to an audience (you) . I did say I’d use small words but clearly not small enough.

What can and what is likely to happen are two different things. I dare say the bank may have themselves taken on staff before their contract ended. Things written in contracts are there incase they are needed. If every company sued someone who left early, the employment market would come to a standstill.

Nowhere have I said the contract wasn’t validated by lawyers. What I have said is there have been some contracts that have been broken by some very clever people.

It’s like contracts saying you can’t work for a competitor for x amount of time. If you are a local hairdresser, that’s probably not going to hold up in court. Now if you are one of the scientists designing new formula for hair dye- it might be seen as reasonable as you could share secrets. But whether it would hold up in court is another matter.

Unlikely to sue given costs, but they can if they wish to. Likely to dismiss you for gross misconduct when you don’t turn up after 1 month. Likely to then give a true negative reference if they wish to. Quite possible to hold on to p45, in practice this will mean you pay emergency tax for several months and also may look odd to your new employer. Id suggest you speak to Hr and look for a compromise, using your annual leave etc. Bear in mind that being dishonest (even if you made a mistake) about the situation to your new employer may not be great either if you work in high trust industries like banking.

Why not? If a judgement is on the Public Record I don't see anything that would stop them saying this. They are simply stating facts that are already known.

I pretty sure this is untrue and that many organisations don't calculate their own credit score but use the one they buy from the credit scoring agencies.

The employer may or may not decide to take OP to court. If they do, they are likely to win and, if nothing else, this record will stay on OP's credit report.

But this is a different point.

Your responses getting more aggressive doesn't make them more intelligent - to say flippantly that "people can write what they want in a contract" and encourage people to ignore contracts is stupid.

Let me leave you to it. I'm trying not to argue...

Stand your ground. In future, don't tell them what they can do... you only need to be clear what they cannot do.

No one in the UK has ever been sued for not working thier notice period. The would have to show that you leaving lost them more money than they saved on not having to pay you. Given its a low level job and they are short staffed they are unlikely to win. Them being short staffed isn't your issue. They should have adequate staffing levels. They can't sue you because they aren't organised.

I’ve given you a few examples of things that can be written. Things that aren’t deemed fair. If you don’t want to read- don’t.

Court cases won’t go on a credit rating. Only if she doesn’t pay as she’d default.

They absolutely can say that. Information in the public domain is not confidential. I do this for a living and am often instructed on a “we want to make an example of this person” basis.

Not true. I’ve been instructed to sue former employees for not working their notice, and on each occasion, have obtained judgment - because the employee breached their employment contract by walking out early, and the employer sustained a quantifiable loss.

poppycock

If the employer has 100 staff in the call centre and is one down because the OP walked out, therefore has to pay others overtime to cover that person’s shift, or employ a temp, then their loss is the additional cost of paying for those extra hours. Assuming that they are not paying OP’s wages because she’s gone, there may be no loss if the cost of engaging others to cover her shifts is the same “price”. However if it’s greater, the difference is the loss.

I think it unlikely that they would bother to sue her, but they could do and if they did, they would win. I have certainly been instructed to do this in the past, on a “we don’t care about the money, it’s for the deterrent factor to other employees” basis.

Can you explain how being involved in an employment dispute would affect your credit rating?

Check your credit report. Amongst other info it has court judgements there.
Lender might or might not take this info into account, but it's there.
Lost court case of contract breach is not good a sign.

Surely they can pay your holiday and give you your P45 when your notice is up.
The fact your not working your notice doesn't mean it doesn't exist. They can leave you on the books unpaid until 3 months time and then pay your final holiday pay and issue your P45. Acas may think you're saying they'll never pay your holiday or issue your P45.

I can't see where I said it would?

But wouldn’t leaving early be seen as you taking your holiday time?

It's paid either way so it makes no difference. She isn't due notice money (PILON) - only salary up to the day she leaves.

The only benefit to "taking" the holiday is that her employment continues for longer and so she accrues more leave.

But that’s not a benefit when she has a debt for training.

And increased NI if paid in a lump sum.

Update for everyone: my manager agreed to me leaving by X date as did HR. HR agreed they won't be withholding my p45 or my holiday accrued and next month I will get this paid out to me and this month my pay will be as normal. My manager or HR haven't mentioned my course that I did so not sure if I still have to pay that back and didn't bring it up.

They may just take it automatically out of my holiday pay for next month and if they do I don't mind. My manager agreed to make things less stressful for me as that their manager said it was their call after HR agreed and my manager is happy for me to leave and be my reference (and if HR are contacted too, that's also fine). I will hand in my work equipment and that's it. Thank you guys so much! Was stressing over nothing.