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!

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 do not have to give a reference

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

It does not cost £25k to take someone to court. It could be much more or it could be considerably less.

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.

The OP has eight years' service and so is at the very least entitled to 8 weeks' notice.

Hi OP ,firstly are you in a Union. They should be able to help. ACAS can be vey helpful In my working life I was a union rep and companies do not like tribunals. I once went to one as I was doing a course at the time and the tutor told us going to a tribunal was a very good idea. If your situation gets to tribunal stage the people in charge will give a clear idea of your likelihood of winning it. It is expensive for companies to attend as they will have to send someone along .Companies often do not adverse publicity and will often offer a very good offer so that there is no chance of getting bad publicity. I actually still love hearing about successful wins. Some years ago a lady won a case as they were trying to change her hours and it adversely affected her. The man in charge of the company said Our company will be attempting to reclaim the amount. So I sent him a letter saying I disagreed with him and added but all I am is a shopper at your supermarket. What I can do is stop shopping at your store.? I pointed out I would let my Union know and put a letter in their newsletter to advise people not to shop there. Also as it was around this time of year I said I would add a note to my Christmas cards asking people to add a note to their Christmas card list spreading the word. I asked him how many people would know by then and added I have always wanted to be on This Morning and luckily I live in the North and could get a train and a tram to be featured on BBC breakfast show. Then I added by then I imagine all the radio shows in Britain would want to hear from me and how many people would boycott his supermarkets. As far as I am aware
he did not pursue trying to reclaim the money and some months later read in newspapers he had decided to move elsewhere. He just made me livid and I sat there thinking what sort of idea I could come up with .Lastly it is never a quick process you will no doubt have left by the time they are able to arrange anything. Some people can leave without their paperwork in place but the new employer will want things sorted. If needs be they can contact your firm for this and again it would not go down well that they had not handled things . Anyway all the best OP.

My manager told me that HR have threatened legal, but didn't say more than that. I called ACAS this morning who confirmed they cannot legally withhold my p45 or my holiday (so whether they call my bluff and do it anyway and try to see if I complain about my incorrect final pay and try to report them lets see) and would have to prove a loss of earnings and sue me. I am logging into work soon, so will see what my manager comes back with, as I told them I went to ACAS. Terrified though and know it's still risky/CF what I am doing!

I’m a lawyer, but not an employment lawyer.
But want to say here, I have NEVER in my working life met a lawyer who gives their time for free like this. I wish this line wasn’t pulled out all the time. Wtf. Seriously. Do any professionals or tradespeople give their expertise for free? What CFer expectation is this??

OP, you’ve got a contract and it’s on you to check the details of it. It is I would say though a tall order for a entry level call centre job to have a 3 month notice. Based on your salary, potential loss to the business and cost overhead of taking action against you I would find it an unusual move. Nevertheless, without more information, it sounds like they would be entitled to. Once you are off payroll the accounts office need to inform HMRC and you get a P45. The question would be is when they would take you off payroll…

This happened to me, long time ago. But, legal advice told me, a oontract has to be fair and if it isn't - i.e. unreasonably slanted to one party, particularly when that is the employer and it's a condition of getting the job, then it can't be upheld. I was advised to just leave and let them try and sue me.

So I did. Never heard from them again. They knew it was empty threats - they were a dreadful company to work for in so many ways and this was just typical of them.

It's a risk but what are they actually going to get out of it if they sue you. Because they can't just sue for punitive damages only their loss. And since they won't be paying you for a notice period you don't work they can't claim they had to pay someone else instead and that cost them money because they've saved that money.

It’s one thing asking for a shorter notice period, but having been made aware she didn’t read the contract she signed and her notice period is longer, the OP has decided that she will ignore the notice period she agreed to. I think that does have a bearing on how another employer would view her trustworthiness.

I know someone who when told he had to work a three month notice period with no possibility of shortening it dutifully went in every day and sat at his desk and played on his switch and got paid for it. In all truth if you are working from home do they even know if you are actually doing any work?

They constantly check calls and emails taken, in a call centre you get told off if you go to the toilet too often

You don’t even need your P45 as it usually cones through after a new job start date anyway so you will fill out the new starter forms (used to be a P46). I’d advise if they withhold your P45 as a threat you will report them to HMRC as that is your tax document.

You must be very stressed, you are being treated unfairlly.
I'm sure your GP would sign you off with 'stress' especially if you can manufacture a few tears when you phone!

Exactly. There is no issue whatsoever with negotiating a shorter notice period. I've done it myself before, and I have agreed to it on multiple occasions for an employee.

The issue is not asking to shorten the notice period. The issue is about breaching the contract and not having the commitment to stick to the original agreement. Of course that suggests a lack of integrity and raises questions around trustworthiness. It is the same as announcing to your new employer that you don't care about keeping promises or honouring commitments.

As I've said, the old employer is very unlikely to pursue the matter, so the risk is probably minimal, but I would be concerned about the potential for the breach of contract to be included in the reference, depending on the reference policy which the old employer has in place. Even if the new employer didn't withdraw the offer as a result of a such a reference, it would potentially put their guard up.

That is excessive im a senior manager in a professional job mine is 2 months as they would have to find someone qualified and experienced. Tell them in writing you are going and mention the p45 threat hr hate email trails make sure you print the emails off before you leave

What are they actually going to do though - sack her? They need to go through proper disciplinary processes before they do that.

There is a lot of incorrect "advice" on this thread. I see @user927464 has tried to correct some of it.

If OP's contract states that her notice period is 3 months, that is her notice period. It does not matter that she is paid more frequently, nor does it matter whether anyone considers it to be reasonable.

OP's employer is required by law to give her a P45. However, withholding it will not prevent OP starting her new job. The worst that will happen is that she will be on an emergency tax code until her new employer gets the information they need from HMRC.

I see someone has suggested it would cost OP's employer £25k to take her to court. This is rubbish. Even if they were claiming over £200k from OP, the court fee would only be £10k. Court fees start at £35 for claims of up to £300.

If OP's employer suffers a loss that is directly attributable to her failure to serve her notice, they can claim that from her. However, that is all they can claim. So if, for example, they have to take on a temporary member of staff to cover for OP's absence and this costs them more than it would have cost to pay OP, they can claim that additional cost from OP (i.e. the cost of the temporary member of staff less what it would have cost to employ OP). However, such claims are difficult for businesses to win against junior staff such as OP. It is highly unlikely OP's employer will actually try to sue her.

OP's employer is not required to give a reference as she is not in a regulated role. Whilst many businesses stick to factual references, they do not have to do so and they can give a bad reference. However, if they do, the reference must be factual. They can say that OP left without serving her notice, but they cannot invent other allegations. In reality, the worst that is likely to happen is that they refuse to give a reference.

I’m a teacher end notice periods are a similar length (but a bit more complex, tied to terms) I know lots of teachers that have refused to work the full notice period. I hope a solicitor comes in and gives you some advice but I would imagine that them actually taking you to court when it’s a junior role is slim. They also would be taking you to court for what it costs them with you leaving ‘early’ and they would have to prove it’s cost them money. I haven’t yet met anyone that was actually taken to court. They would have to convince a judge that a young person, earning very little in a junior role has cost them enough money and problems to warrant the action. They also run the risk of the 3 month period being considered excessive by a judge - just because they wrote something in a contract and you signed it doesn’t mean it should have been there in the 1st place. I think if it were me I would just state my leaving date (a month / 4 weeks) say that the threat of legal action is very stressful and then just take the risk of them doing it. What else can you do really? It sounds like you need to get out and If they did win you would be able to pay them back exceptionally slowly anyway (not ideal I know) Hioefully your manager just does the reference quickly. Even if it goes to HR what’s the worse they can say? That you didn’t work your notice period? It’s hardly the crime of the century when most of us here agree the period is excessive anyway.

It is highly unlikely they will do this but as a bank with a call centre then they sound like a consumer bank with quite a few customers and a an image of trustworthiness to maintain.

If they threaten to sue you again, get it in an email if you can, then tell them you'll go to the press and tell them what unfair contract terms they impose on their staff and what shits they're being about you leaving.

3 months is outrageous for a call centre job. That's simply a device to try to stop people being able to get a job anywhere else.

Good luck with the new job!

I think this is true, I’ve read it online that they have to prove it’s affected them financially. Well how much can a customer service advisor leaving early actually cost? I bet a good solicitor would be able to prove that 3 months notice is against some employment rule or another anyway when you’re getting paid peanuts and are one of 100’s of staff doing the same role.

Not so companies can give a bad ref
There have been cases where a company has not and have later been sued by the company taking an bad employee on

My advice would be to stand firm on the issue (you are leaving and they can’t deduct pay or withhold your P45) but be SOFT and conciliatory on the tone/people. Express appreciation for your manager, for their support over the years, regret and empathy that it is a tricky situation for them, and wishing you had another choice)…. The only reason they would ever take you to court would be if they were piased off and wanted to make an example of you…. So you diffuse that risk by being nice.

what I call SOPHOP- soft on people, hard on points.

Generally any employer can dictate when you have you holidays
so they could force you to take your holidays in the notice period but you would still be short
what they can’t do is finish your employment immediately and the pocket your holiday pay as notice

they have to keep you in the books and down as employed when you are taking the holidays

Call centres are hell on earth, even the “good” ones and the bad ones are just so truly soul destroying awful.

Congratulations on getting a job out of them, OP.

I would make sure you still leave, notice be damned, start your new job. Hopefully it’s all just a load of posturing by them and more of what they’re used to - trying to treat their employees like crap.

I think there might be a reasonable case for "unfair restraint of trade". The 3 month notice period would prevent most call centre workers from moving easily, because with that level of job a decent employer without a massive turnover won't wait 3 months for them to start but will employ someone else instead. If they were threatening me I'd be making noises about counter suing for that (knowing I could never actually do it, of course. )

Did you ask ACAS about them deducting course costs from your final pay?