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!

Yes they can sue you, unlikely they will. You are breaching your contract.

I had an employee tell me she was starting a new job and not serving much of her notice.

She didn't start her new job until she'd served her notice (which would have severely impacted lots of children's education/exam results).

You dont need a P45 to start a new job, get s new starter form off .gov.

OP - are you still in contact with anyone who has left recently? Might be worth seeing if they were also threatened with loss of pay or lawsuit if they left early and what they actually did too.

also have a look at your house insurance to see if you have legal cover (or maybe through bank account or union membership or???) and then ask through that - it’s usually free to use (and won’t affect your next quote in the same way that making a claim would). They can give you precise advice and it’s really helpful - I used it when I was made redundant and my employers were playing silly buggers; it was great to know which bitsi needed to do and which I could ignore rather than assume that what my (biased!) employers said was true!

Have you actually signed a contract for your new job?
If you're worried about references that suggests not so are you thinking about a hypothetical future start date?

I work in a call centre and my notice period is also really long, its ridiculous!

How much notice have you given them? When have you told your new employer you can start?

There is likely room for negotiation.

/

I left a role without working notice previously. I took a calculated risk they wouldn’t sue me, because it would be stupid to do so, for so many reasons. They did not sue me. Of course, there’s no accounting for idiocy, and nobody can guarantee you they won’t decide to try to sue you - but legal action is expensive and unless HR get to make the call themselves I would expect a business approver to say no. Three months is a crazy notice period for a call centre.

I left a call centre without working my notice - they said I had committed for 3 months but they treated us worse than farm animals no way was I staying. So I walked out and nobody did anything.
Nobody else will wait for 3 months for a junior staff and its sharp practice to slide an unreasonable term into a contract when people are signing up because they are desperate for work. Can’t see them wanting to highlight how bad their employer practices are in a court.
I bet they would let their CEO leave with less than 3 months notice if he got a better job, they would just negotiate it. They are just trying to bully you because they think you are weak and powerless.

Can you not just contact your new employer and explain that your current employer really needs you for a couple of extra months and ask if they could wait? You might find that they appreciate your commitment to help them and they agree and then everyone is happy?

I am a manager in a call centre. Our associates have a 2 month notice period but the most anyone does is one month. We’ve never sued anyone. I would be a bit wary of a new employer refusing to give you more than a week to start, are you sure this is a good move? Sounds like moving from one shitty organisation to another. But in answer to your question, I doubt they will take any action.

Notice period is as per contract. There isn't any argument about that.

Good employers expect you to work your notice in the firm you are leaving

Working during holidays is one thing.

But most new employers ask you to confirm that you are free to start the new oust, which you're not if you're still employed. Most employers have a contract clause saying you can't have another job while working for them without their agreement.

It's not really the right time for the op to ask for that agreement. And they won't give it. And starting a new job in dishonest circumstances isn't great. And the new employer might withdraw the offer if they find out. Which they will because the dates of employment will be on the reference.

I’m a lawyer and this is nonsense. Your notice period is what you signed up to in your contract, in your case 3 months. Employers usually reserve the contractual right to decline holiday requests in a notice period too. If they want to sue you, which they would only do to make an example of you and deter others from the same conduct, they’d be likely to win.

I'm not a lawyer. But I think if you've got in writing that they will withhold your P45 perhaps you could counter their claim. And perhaps argue that 3m notice is excessive but you really need to see a solicitor I think.

I’ve started plenty of new jobs while on leave taken as part of my notice period. It’s a very standard thing to do. Unless there is a clause in OP’s contract/company handbook banning other jobs, of course she would be able to do that!

Your new employer could also be liable for procuring your breach of contract so may withdraw the offer, or worse, dismiss you after you’ve started, if your current employer puts them on notice of your employment terms

This. I’d always fill in a P46 anyway to avoid any issues with emergency tax when starting a new job.

> HR may go down the legal route and refuse to give me my p45 in order to start my new job
That's the illegal route
They cannot withhold your P45
Contact DWP and HMRC immediately and let them know your employer is threatening this
The only time I've ever seen this was with a large Spanish owned UK high street bank
I told an HMRC helpline, my P45 arrived in the post four days later

She wouldn’t win if their statement is true……..

Of course HR give true employment references, especially in financial services and other sectors.

It would be odd to find any employment contract which did NOT expressly prohibit working for another employer whilst employed by the first employer. Working for a new employer whilst in your notice period falls within this restriction. There is some shocking “advice” on this thread

A 3 month notice period would be deemed an unfair clause in a contract unless you were in a senior position, and a court is very unlikely to enforce it. Statutory minimum is a week, if you are paid monthly, that is probably what a court would decide you should work. So yes they could sue you, but for the equivalent of 3 weeks between the week you are working, and the month that would be deemed fair. Most companies won’t bother, it’s not worth it.

Please send links to an employment solicitor that gives a free 30 minutes. I'll wait.

What a weird response. I'm guessing you didn't read what I posted.