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!

This is an approx estimate, of course this depends on complexity, the point is, they aren’t going to waste their time on a call centre employee unless there are some very serious other allegations. What would be the point?

Well that’s what they rely on isn’t it? Us poorer minions not being able to afford a solicitor whilst they employ them already. It’s stinks really, poor lass just wants to move onwards and upwards.

Hoenestly I think you ened to stop trusting what your manager is telling you. Manager may be trying to get you to work your notice by telling you fibs that "HR said".

I've never in over 30 years of working in HR known any employer to 'sue' for breach of contract for not working out notice. And that includues for senior posts which are very hard to replace and where notice was 6 months and had contractual restrictive convenants on what work the employee could take within 12 months of leaving.

You already know they canot withhold holiday pay or P45. Unless someone in authoriity (e.g. HR) confirms in writing they are talking legal action all the rest is empty threats. And even if they do, they are probably just doing it to frighten you into staying for your notice.

P45 for new employer isn't an issue anyway, you simply tick a box on the New starter form that you don't have it yet and supply it when you do. The previous emplyers reports your pay & tax details to HRMc in real time and eventually HMRC works out the tax side andnew emplyer taxes you too. It will all be fine.

Re references they must be factual. Assuming your performance in your job is satisfactory all they can say is that you didn't work out your notice/breached you contract at the end.

It happens all the time that people don't see out their full notice. Annoying but not the end of the world.

It's my employment length not standard, every year of employment is a certain amount of notice I have to give them added. My hours are fixed during the day (they don't hire for part time) and this new job is on site until I pass probation and then 3 days from home so it would be impossible sadly.

’Free’. Honestly it sounds they own you. They don’t. It’s a minimum wage call centre job. I have no idea what everyone is worrying about.

Your present company has refused you annual leave. On how many occassions? Have you got proof of this?
You need legal advice but I would suggest that you resign quoting the constant refusal of annual leave. At the same time file a complaint with ACAS & Employment Tribunal. I would suggest that they might be guilty of constructive dismissal.
However your new employer might take a dim(mish) view of a new employee who is litigious.
Last note. Why are you not in a Trade Union. They will know your company; your sector; and your particular rights.

OP just be calm but assertive. Say I am sorry I made a mistake not understanding the different notice period to the standard on the employment contract. That said I have accepted a new job and will have to leave on the date I have given notice for.

That’s it. Repeat. I am sorry I cannot work past this point. Polite. That’s it. Done.

And no don’t start filing claims! Just leave without having taken the leave and they legally have to pay it to you.

This is reassuring. I told my manager I cannot work past X date and that after checking with ACAS HR aren't allowed to withhold my p45 or pay. I am waiting for their reply as they read my message. If HR threaten to sue me I'll call their bluff I guess. I am hoping the reference is just factual and simple. It really would be easier for them to just pay me and let me go and hire someone else than go through the effort of suing me. Thank you so much!

This seems unusual. The other way around is legally standard - for each year of employment you get an extra week of protection (up to a limit of about 12 years/weeks) e.g. if you get made redundant after four years you would be due an extra four weeks of redundancy payments on top of your normal notice period. Has someone checked your contract properly? Loyalty/length of service wouldn't usually put extra burdens on the employee.... though I suppose it must be possible.

We have agreed to my start date and I have signed the contract. The background check and references are going ahead in the background regardless of me signing the contract.

this is why everyone should a) read their contracts (you have to have a copy, electronic or printed, so when you start a new job make sure you have it) and b) join a union

Tbh no I don't want to, I have burned my bridges and left a sour taste with HR and told my colleagues I'm leaving by X date anyway who were very happy for me in our work chat. So 3 months more of staying would be very awkward between me and my employer and the job is soul destroying so I don't want to stay a day later than I have to. :(

Tha fact that she has been EIGHT years at this place shows her trustworthiness. As if she weren´t trustworthy or realiable she would have been fired years ago. That´s what I would be looking at.

The course is a grand. I was hoping to use my holiday accrued for this. My pay comes soon (so they don't have time to take anything out of this months pay which I think they know and aren't happy about) and they are disputing me leaving anyway so I think it won't come out of this months pay and they will keep pushing to use my holiday and reference as leverage and HR mentioned the "legal route" to my manager so I am not sure what this means next. The contract says I have to pay back the course which I knew and was happy with using my holiday (or if push really came to shove then half my pay). They haven't mentioned the course that I owe them yet though!

I’m a lawyer and I do a lot of restrictive covenant disputes. A three month notice period is not a restraint of trade. First, because the employee is not prevented from “trading” (working): they are still working during their notice period. Secondly, because a 3 month period for an employer to interview and recruit a replacement (who themself is likely to have to give notice on their current job before starting a new job) is in the legitimate business interests of the employer.

No sorry I've always meant holiday I may have worded it as time in lieu but technically it's my holiday pay and I have accrued 100 hours on my work app not TOIL. Thank you.

I would agree that based on your role, it would cost them more to take you to court than whatever they would get out of you if they won. So chance is small.

I used to work in a call centre and 3 months is ridiculous. They should be well aware of the general high turnover of staff in this particular role and have a robust process in place to manage it without threatening to sue call centre agents.

That I fully accept and don't care. I know I am being a CF and putting myself first. I genuinely don't feel guilty but fully admit I am wrong. I can't commit to a 3 month notice in a dead end call centre job even if I was aware so probably would have still done the same. It's more the legal side and I hope they don't bother.

Have a read of this:

https://www.davidsonmorris.com/not-working-notice-period/

The accrued holiday and not working your notice are two separate issues. Payment for the course is a third issue - if you're lucky they may have forgotten!

What's the date you have told them is your last working day? And what day did you inform them that you are leaving?

Depends on the employment contract which might may a reference will be provided, and which sector.

Financial services are regulated and a reference must be provided.

https://landaulaw.co.uk/references/

3 months is unreasonable and I imagine that this would instantly be obvious in a court case. I wouldn't give it any more thought.

1. OP’s employer can give a negative reference provided it’s factual - eg OP not complying with contractual notice period

2. OP’s employer can also decline to give a reference as there is no legal obligation for an employer to provide a reference

That's why I wanted them to take the course from my holiday owed, and not them taking my holiday as breach of contract. They haven't brought up the course at all however though, but I have planned for that regardless. I am leaving next week whether they like it or not and politely told my manager so. I am praying they don't sue me (1 week notice instead of 3 months which I accept is CF-ish behaviour and know I have left them in the lurch). Thank you.