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!

@confusedlady10 I have given you the factual employment law answer.

They won't sue you and they won't pay your holiday hours, because they know you won't sue them.

They will give a very non-descript reference because this is all more bother to them than it is worth.

Yeah I mean they could say that 🤷‍♀️ The new employer probably wouldn’t care too much though if the OP explained that the old employer isn’t happy that she is wanting to cut her notice period short.
I agree that for a non specialist role a 3 month notice period if reviewed by a court would be seen as excessive.
Lots of employers try things on in contracts. I once had a non compete clause saying I wasn’t allowed to work within 5 miles of my employer for a year after leaving. This was in London so it ruled out the entire city and west end where all the employers were. I took advice and was told it was completely unenforceable and nobody who left the firm was ever even threatened with enforcement because the owners knew it was unenforceable too.

They can let you use holiday legally though you wouldn’t get your p45 until after the holiday. Whether they take legal action I can’t tell you but the courts would likely expect you to have worked a months notice, if giving less than a month it’s really unreasonable of your new employer to even suggest it

Sticky situation but just remember whatever you do (finally get them to approve holiday or go off on sick for work related / this situation stress for example), you will be taxed an awful lot when you start the new job as technically you have two employers at the same time

Some employers might not care about a breach of contract with the former employer. It would be a red flag for others, and an indication that the OP isn't a reliable, trustworthy employee.
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It may do but the OP may still have to take that action and would still be without the pay they need until it was resolved.

C’mon, if you’re in HR, you (should) know that’s not true.

It’s up to the court to decide if the terms of a contract are reasonable and there’s no way the court is going to agree that a 3 month notice period for a minimum pay call centre job is remotely reasonable. 🤷🏻‍♀️

Given that a few posters have indicated similar notice periods for call centre roles, the employer could probably make a case for it being standard in the sector.

But I think it's highly unlikely that a case like this would ever go to court, so it's a moot point in any case. The employer is very unlikely to sue.

I would be more worried about the reference in the OP's position.

Just leave. So what if they give a negative reference? They can only legally say what is true and not working out your notice is easily explained away to a new employer. They aren't going to sue you but they are not going to make it nice and easy for you to leave either.

This^

They sold like bullies - blackmailing you over holiday pay and P45, no wonder you're leaving

Companies like this rarely take you to court, as they'd lose money on it and time. They will though prey on your good nature and make you scared that is what they will do so you do as they say...

I think by withholding your P45 they mean that you won't be made a leaver on their payroll until your notice period is up and that's when they issue your P45.. It means you may end up on a BR tax code (20% on every pound you earn) in your new job until your current employer reports your leaver status to HMRC.
You'll get a refund eventually but may end up with less nett pay for the first 2 or 3 months of your new employment.

They might threaten it but doing it would be illegal. I saw this TikTok yesterday which has some info about leaving before your notice period: vm.tiktok.com/ZNdoQDVhc/

I doubt it very much. Asking for a shorter notice period has nothing to do with trustworthiness. Some people seem intent on panicking the OP and making her follow her contract to the letter even if it means missing out on this new job opportunity.

This is why I always double check things that don’t seem right at my place of work. You always get a few idiots working in HR that tell you the complete wrong thing 😆

They have to pay your holiday except if they want you to repay the cost of the course. Then they can take that money from your final payment.

They may be in breach of the employment contract because you can't take any holiday. If they threaten to sue, calmly tell them that you will counter sue for breach of contract because you can't take any holiday.

They are legally obliged to give you a factual reference. This is dates worked and job title, sometimes reason for leaving which I would say resignation. They can say she didn't work her notice but why would they bother? Why would it matter because you just say because you wanted to work for your new employer asap.

If you have given your manager's email and phone number your new employer will call or.email that person for a reference. Your manager may say they have to go to HR, but why would they?

It will cost them more to sue you than your salary. They are trying to scare you because they are short staffed.

Be polite. Stand your ground. Stay calm.

IANAL.

This. The cost of taking you court (even for a large company) would be prohibitive given your salary and (no offence) standing in the company.

This is something usually reserved for the big guns where they can prove someone leaving in notice causes a significant financial impact.

Could I be sued for not working my notice period?
In order to sue you for breach of contract, your former employer would have to demonstrate that they had suffered a financial loss caused by your early departure.
Damages aren't the only thing your employer might want though. Your employer could also seek an injunction from the court to stop you from going to work elsewhere until you've completed your notice period, or for even longer if you've gained a competitive advantage by breaching your contract.
If the impact of you leaving the business without giving notice is minimal, the chances of your employer suing you for breach of contract is usually low.
However, if you're in a senior position and your role can't be easily filled, or you're leaving to join a competitor, the impact on the business may be considerable and your employer may be more likely to threaten action. If you're a company director or simply have responsibility for company assets or client funds, you're also likely to have additional obligations, such as fiduciary duties, which will also affect your employer's reaction to you resigning without giving notice.

They are highly unlikely to bother.

Doubt it all you like. But some employers would definitely regard it as a red flag.

Maybe if they have someone like you making the decisions, yes. Otherwise I think it highly unlikely that the second employer would rescind the job offer when the OP tells them that she’s asked to leave early so that she can start her new role with them and that her current employer isn’t very pleased about that.

and @AmIHumanOrAmIAYeti

I accept that if a negative reference is 100% copper bottomed true and backed up with impartial evidence then there is little risk to the company.

However, in my experience in the corporate world the drive to remove risk exposure would trump anything else . No matter how much fun it might be to give some one a damning reference there is little (no) upside for the company so why bother drafting guidelines to cover it (what sort of evidence, thresh holds for what to put into the reference scope of behaviors to report, how to make it not look like a revenge hatchet job) - and let the policy be to give a dates and job title reference across the board.

Well, yes, they might have someone like me making the decisions. That's the point.

Some employers place emphasis on trust, integrity and reliability. Others don't.

They can't withold your P45 and even if they did your new employer would tax you at basic rate until it was handed over. You may end up with a bit less money in the short term but with a tax rebate to come!!

There is zero risk for making a factual statement for which there is solid evidence.

After reading the whole thread I think a few people are being completely over the top.

The OP has said she works for a big high street bank- that’s going to be the likes of HSBC, Barclays, Lloyds etc. The damage to their reputation if they did sue her (they won’t) would out way any money they would get back from the OP. I think as soon as the press found out they were enforcing 3 months leave periods for junior employees, withholding P45 and refusing to pay accrued holiday which the OP is legally entitled to, they would have a absolute field day. They aren’t going to risk that over a junior employee.

I don’t know for sure, but I would be pretty confident if it did end up in court, the judge would rule the 3 months leave period was unreasonable because of the seniority of the OP role. It’s likely she is moving to another junior position, and no business is going to wait for 3 months to hire a junior member of staff.

The only thing I think the OP needs to be careful of is not working 1 months notice. That would be reasonable to expect her to do, but if she is owed holiday normally they would take that off the month so the OP last working day (physically doing her job) would be say in 2 weeks time, the last 2 weeks of the notice would be holiday and then her officially last day working for the company would be in 4 weeks. They can also deduct the cost of the course from her pay which may stretch a couple of pay periods if it’s more than her monthly salary, and this might be the reason why they are pushing back on her leaving because they wouldn’t be able to deduct it after she’s left - the would need to invoice and charge her. Not sure how that would work.

They're short staffed?! How unexpected, considering they sound like such a great employer!

If it were me, I'd say "oh okay, I'll work the three months - sorry I didn't realise" then wait until I'd been paid and never go in again. I've known people do similar, there's never been any repercussions x