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!

Don't worry about it, it will all happen without you having to even be aware of it. HR do references all the time. In big banks they probably do a hundred a day.

Ok, so I have told my manager that I checked ACAS and they can't do anything legally with my holiday for breaking contract. I shall see how they reply tomorrow and what HR tell them. I'm scared HR may follow through or give me a bad reference anyway. Thank you!

There probably isn’t much they can do. I have heard of people being sued but it can only be for actual costs - for example, they had to hire an agency temp to cover your role and this meant paying an additional 20% to the agency for their fee. So it likely won’t be worth the time, cost and effort involved in doing so.

They can mention it on references because it is a true, factual statement. All they need to say is “confusedlady refused to work her notice period”.

Don't call in sick - how would that help anyway, you'd still be employed, you cannot start the new job while employed in this one.

You intend to break your contract, fine. People do you know. Just say "while I'm aware my notice is three months which would take me to x, I will be leaving on y and that is my last working day. Please ensure all outstanding holiday pay is paid in the next available pay run after I have left".

You can use the 100 days holiday towards the notice period

https://www.davidsonmorris.com/three-month-notice-period/#elementor-toc__heading-anchor-0

I think I can too, the issue is I need the money and don't want to have to. ACAS said they can't keep my holiday owed for breaching contract and have to pay me and then sue me? I'm willing to take the risks sadly. :(

Yeah I have no intentions of doing so, even before my manager brought it up to me it crossed my mind, but knew I wouldn't because it just seems more hassle to lie.

If you don't work your notice, I believe that in theory your employer could sue you if they could show that they suffered financial loss as a result, e.g. having to employ a temporary member of staff. However, in practice I think this must be pretty rare for a low-paid job. Most employers will shrug their shoulders and move on.

My advice would be to appeal to your employer's better nature and say you were offered your dream job (or a job on the way to your dream job) and your new employer wants you to start work very soon. Please could you leave your contract early? How soon could they spare you? Obviously, you don't want to leave anyone in the lurch.

If they say no, then I'd get advice from your union or ACAS.

You are legally entitled to your P45 and there is an escalation path you can take via HMRC to ask them to approach the employer to obtain it, so they really shouldn’t withhold it. That doesn’t mean they won’t just that they shouldn’t.

It is possible for a company to use your accrued leave at the end of your notice period to shorten the period that you have to actually attend work, but you would be classed as still employed up until the date that leave ends, so would essentially be working 2 jobs at the same time. What they can’t do is just give you the leave and let you end the employment early, eg you have a notice period till 30th Nov, have 10 days leave so you take annual leave for the last 2 weeks, your employment ends 30th Nov and you would be paid in the normal pay runs so would get a paycheck end of December.

Can legally, yes, but the employer does not have to agree to it.

Also: 1) it won't help the situation because op would still be employed and unable to start their new job (and 100 days is more than three months), and 2) it can't be holiday anyway, as it's so much, it must be time in lieu which has different rules.

It's not holiday though, it's time in lieu.

What is their time in lieu/overtime policy?

Thank you, this seems promising for me.

It's 100 hours. Apologies.

Oh, that makes more sense!!

In my contract it says they pay it back unless I can take it (which I can't as they physically don't have the staff and the system immediately denied any of my holiday requests to try and use it up) or unless I am fired for gross misconduct.

legally you are in breach of your contract. Regardless of a month being more reasonable you are leaving immediately. They won’t sue you. More cost and hassle, it is just a threat. I work in a senior HR role fyi. Onky worth doing for someone who is sales, high value network, key skill etc etc. don’t worry! They could provide a negative reference but just say that they imposed an unreasonable excessive notice etc etc

Oh and they cant withhold your P45, that’s illegal!

Thanks for your advice. If I tell them they cannot withhold my accrued holiday, will they do something or refuse or still not bother to sue? And when you say negative reference, as in telling the background check/new employer that I breached my contract? I am leaving anyway, so not sure what use it is to state the negative rather than that I was employed up until X date. :(

This is good advice. Much of this is an empty threat. Just carry on.

Ultimately your notice period is three months.
if they’re refusing to let you out of that you still can’t start the new job.
you saying your last day will be x is irrelevant, if they say your last day is the three months then that’s final: whether you go in or not.

ITS NOT HOLIDAY!!

This is important because laws around holiday pay are different to laws around accrued overtime hours.

It's time in lieu. If your contract says they have to pay it, they have to pay it.

You breaching one part of the contract doesn't mean they can breach other parts.

Of course they can give a negative reference but if OP was to loose the position suddenly they might choose to sue the bank, in a corporate environment that risk would not be acceptable and there would be an HR policy on references to protect the company from that risk.

You cannot sue an employer for giving a negative reference (well, you can, in that you can use anyone for anything if you have money to burn, but it would not be successful).

There's no law that says you can't give a negative reference.

What you cannot do is give an untrue reference. That would, potentially, be defamation.

Don't worry about not having a P45. HMRC will have all pay and tax information up to date. All you need to do is fill out a starter declaration when you start your new job.

If you have 100 hours owing to you, and you’re in an entry level role, with a salary to reflect that - there is an extremely high chance they’ve breached national minimum wage regulations anyway. You should really take TOIL in the pay period it’s accrued for this exact reason.

I wouldn’t worry about the notice period as others have said, generally I always suggest people give statutory notice where possible.
Don’t go sick as I’ve seen mentioned. Terrible idea.
As for your P45 - rarely is this ready in time anyway. Complete an HMRC new starter form and it won’t impact you starting your new job.