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!

Withhding p45 isnt a threat

if they’re not paying you, they wont want an open payroll record so they will close it and issue p45 once you sre gone

id take a chance. It’s highly unlikely to happen

The one take away from this thread is that if you are reading this and have no idea what your contract states please dig it out and read it today.

Most contracts will have something about your notice period and then some sort of clause that says something about “or whatever is mutually agreed between both parties”. Resigning without knowing what’s in your contract is foolish but in my experience alarmingly common.

big corporates only give factual references

there really is no threat

I'm a solicitor. This is absolutely categorically wrong.

Edited - to add to the OP that you should ignore anything this poster says since her other posts are completely incorrect too.

People should not give legal advice if they are not qualified to do so

Why worry about the P45? You'll get it eventually, just fill in a P46 in the mean time. People start without a P45 all the time.

It's a bank - banks never give anything but factual references stating length of employment and position held.

Oh OP you've had a long night.

Just confirm all convos with manager in email and then forward to your personal email.

1. Date you gave notice and date of last working day
2. Number of accrued untaken annual leave owed to you

Finish on that date and go start your new job. Your current place will pay everything owed to you. It would be illegal not to do so.

There's a lot of opinion on your thread and some erroneous views being presented as fact. I've worked in HR for a long time. You will get a factual reference and you will not be persued over the truncated notice period.

Congratulations on your new role 😁

It's a statement of opinion and it is broadly correct - with a few exceptions (e.g. teachers), most people in entry level positions have notice periods that align with their salary period. A 3 month notice period for a (presumably MW) call centre job unusually long.

This is incorrect

Whether a notice period is "unusually long" does not prevent it from being the notice period. I suspect the notice period is 3 months either way. This is to ensure that the employer is not left short staffed and unable to get a replacement in quickly.

The reality is that employers are very unlikely to litigate (but potentially can and could be successful if they can show loss). That does not mean that all of these "opinions" saying that the clause is unenforceable are correct.

P45 is irrelevant. You don’t need it to start your new job, you just fill in a new starter form. I’ve recently done it, no drama.

if they say “legal are drawing something up” then it’s most likely to be a severance agreement to cover them for not paying you notice. Fingers crossed.

OP they are unlikely to litigate but could. The reality is it won't be worth their time and cost in your situation.

Don't worry about the reference. The worst it will say is that you failed to work your notice period. That won't be an issue since you have a new role and they wanted you to start. Don't worry about the P45 - that won't be a barrier to starting your new role.

The fact you’re scared shows their tactics are clearly working

Obviously none of us can guarantee but It is hugely unlikely it will be worth their time to take you to court if you are in a junior role. They would have to prove they had sustained financial loss over and above your salary that they won’t have to pay. In a senior role or if they have to cancel orders, events etc they may do. Unlikely from what you have said about your role.

Also illegal to withhold your p45 but even if they do you can complete a p46. illegal too to withhold accrued statutory holiday pay although they may have a contractual clause entitling them to withhold holiday pay if they offer in excess of statutory

CPO here…….

Just tell them of the last day you intend to work and leave on that day!

They have to prove loss for breach of contract and the costs / time etc to take you to tribunal would be prohibitive and a stupid commercial decision.

They cannot withhold salary / holiday pay, not your P45.

Notice periods are essentially unenforceable!

Confirm in writing your last day and then leave.

Also re the reference - their reference needs to be truthful, accurate and fair. They may say you left without working your notice but chances are your new employer won’t give a shit

I think you're slightly mistaking using the holiday accrued during notice. It doesn't mean they'd keep it, but should mean you can get paid and not be working, but still on their books. So you have 3 months notice, you've given 1 month (I presume), you've got almost 3 weeks in holiday. So they're really only arguing over about 5 weeks when they want you officially on their payroll but you won't be working.

The issue can come with starting with another company while in that 'holiday' period as some companies don't allow it due to your potential knowledge of the company you're leaving and taking trade secrets with you. Very unlikely in a call centre role.

How much do you owe your employer for the training course and when are you going to pay them?

I would be concerned that you are implicating your LM in this by ticking a leaving date in a form she has seen / signed.

Have you told your new employer you have a three month notice period and are not going to serve your notice? I wonder if someone from your firm could call them to say you are still under contact.

If your employer takes action I envisage it would be to prevent setting a precedent. They don’t want lots of workers leaving with no or little notice.

Every job I’ve ever had has said 3 months now. It’s the new normal, God knows why, I’ve only had one senior job. Times have changed.

Every job I’ve ever had has said 3 months now. It’s the new normal, God knows why, I’ve only had one senior job.

You do not need a P45 to start a new job, they are talking absolute rubbish. I work in payroll.

I am surprised that the notice period is 3 months if you are customer facing (or provide advice to customers on the phone). There is a risk that anyone forced to work their notice and them citing legal action if you don't could cause reputational damage to the institution.. you could be giving false information to customers and losing the bank a lot of money - and potential legal action from the customer if they aren't receiving correct advice. Very short sighted of them. I would hold out for the last week and be very good at what you do and just not turn up the following week. I assume you have worked a months notice?

3 months is completely ridiculous.

They can take you to court, but they would have to prove loss of earnings by you not working your notice period.

This is very hard to do for any other role than sales roles. My old employer tried to do this to a colleague and it got absolutely nowhere.

Speak to a solicitor for sure but the threat of legal is probably just that - a threat.

They cannot legally withhold your P45 and even if they do you can start the new job without one. Your first pay maybe taxed higher but you can definitely start. I work in finance and on board people without one when they haven't been able to get it.

They legally have to provide a reference. It may just say X worked here between these dates. Like a factual reference. Some workplaces only provide this anyway.

They won’t sue you! A call centre job salary will be cheaper than the cost of pursuing legal action. It won’t see the inside of a court, they may well not pay you though. When is your next payday, should this include your holiday pay?

It costs 25k to take someone to court, what’s your salary? Seems unlikely to me that this would be profitable for them.

How much notice does your contract say they have to give you of they terminate your employment? Is that also three months or only one month? If only one, you are probably very safe as the contract would be unfair.