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!

Yeah, employment lawyers don't really do that.

It is neither 100 days nor time in lieu.

I'm not saying people don't DO it, but they shouldn't.

The OP says it is holiday………….

Sure, but the post I was responding to said it was both those things.

You owe them money for a course you completed? What does your contract say about paying back that cost.

In my experience, I had money deducted from a final salary to recoup costs from a welcome bonus. I didn't remain in the job for the full period to prevent paying back this money so it was deducted, so of thats the case for you and the course costs, they may deduct final pay to cover course costs anyway.

They do now, they previously agreed it wasn't.

We have 3 month contracts for everyone at work, several managers have left and not worked the full notice period and Ive overheard management say there’s nothing they can do about it. Apparently the company would need to prove that you leaving early cost them money.

And you don’t need a P45 to start a new job - you complete a P46 for your new employer and any tax code discrepancy will be sorted by your 2nd pay date

Where is the overarching legislation which prevents it?

if there is no clause to that effect in the contract ir staff handbook, how would they take action? It’s not illegal to have 2 jobs simultaneously.

I am an employment lawyer. It is very very unlikely they would sue you. I’ve never known an employer do so in practice, although I’ve known a handful to threaten it. If they were to sue they would have to show they had incurred losses due to your breach of contract and the damages awarded would be limited to that amount. So in theory if they had to get an agency worker in to do your role for the next 3 months at a higher rate of pay they could sue to recover the difference in pay. However the costs of suing would greatly outweigh the potential damages recovered, so it won’t make sense for them to sue

Oh, I also agree that the ‘free half hour of advice’ I often see referred to on here isn’t a thing! Not anywhere I’ve ever worked anyway. We’d never get any chargeable work done!

I would contact the new job and explain that it's a 3.month notice. I'm sure they'd wait 8 more weeks for you. That way you're all sorted, with no worries of being sued.

This is not strictly true. If she didnt spot it and it went to court (really dont think it will) a judge could rule unfair terms and that it would be unreasonable to think she had to seek this information out especially due to the nature of her work. What would be the point in going off sick if you cant start the new job?

Op if I were id speak to hr direct and explain the anxiety this is causing you and you genuinely didnt realise the notice period was three months and that due to financial reasons you need this new job. No reasonable hr will care to take you to court over this.

Have you actually seen the reply from HR? I work for a big company and sometimes you do get some absolute idiots in HR and I have to often check with someone else who will tell me something completely different. Other times it’s the manager who has just made something up.
Which bank is it you work for? Because I can’t see how a major high street bank will be giving you a 3 month notice period for a call center job. That kind of notice is normally reserved for senior managers and they will send them off on gardening leave for that period.

They can’t withhold your p45 or holiday pay. They could deduct it for the notice period I guess? Are you sure you are owed hundreds of hours? Does it reset every year?
I would write a email to your manager/hr stating you give 3 months notice from x date to x dare and that you will be using your annual leave in your notice period so your last official day will be (the day you intend to leave)
it’s highly unlikely they will sue but they may refuse a reference?

There would be no risk to the employer for providing a negative reference if they could demonstrate that the reference was strictly factual.

It's unlikely that the employer will sue the OP in this situation as it probably isn't worth it from their perspective. But there is nothing to stop them from telling the truth in an employment reference.

As a last ditch attempt, You could go to the doctors and get signed off with stress. Which they will absolutely do because of the threat of legal action against you. Then your employer can do absolutely nothing. I’ve never done it myself, but seen plenty of other people do so in similar situations and nothing is ever done.

Of course it would be true to state that the employee breached her contract by refusing to work her notice period. That's exactly what she says she is planning to do!

How long have you worked there OP?

Nope. If it went to court that would likely be seen as an unfair contract term. Three months for entry level min wage? Judge would laugh.

You can write anything you like a in a contract, doesn't mean it holds up

I’m not in HR but I’d be more concerned about the new job than the old one. Some employers have a clause that you can’t have 2 jobs without permission, if you haven’t had your P45 and are still wrangling with your old employer could the new job say you are technically employed twice which would be a breach of their contract and let you go?
you could end up with no job.
can you be honest with both and negotiate down to 2 months? New job might be annoyed but would probably agree as recruiting is a pain and if you are the candidate they chose they’ll wait.

No they can’t take your final pay - it’d be illegal.

if they did pursue legal action they could only do so for the difference in getting someone to cover you. I.e if you get paid £13 an hour and they have to pay agency staff £14, they can sue you for the £1 difference. They won’t though.

@confusedlady10 i imagine that just like you can breach your contract by not working your notice, they can breach theirs by not paying your holiday pay. Then yes you would have to persue them for it

This is where you are being unreasonable. You are dropping them in the shit by refusing to work your notice period because you didn’t check your contract (who goes to a job interview not having checked their notice period?) and you aren’t willing to use your leave hours to rebalance that.

They probably won’t sue you because it’s not worth the effort, but you are being shitty.

The law looks incredibly unfavourably on a business doing this versus an employee not working a potentially unenforceable contract term.