Working a notice period. Can employer enforce it?

Discussion in 'Finance, Property, Law' started by EX_STAB, Aug 25, 2010.

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  1. Clearly this will depend to a degree on terms and conditions in any written contract that the employee has signed but how enforceable is such an agreement?

    What actions can an employer take in the event that the employee just doesn't turn in?

    In the present case it's not exactly a major city banker we're talking about but a nursery nurse on a part time 27 hours a week contract with only occasional bits of holiday pay.

    As I see it the only sanction they could reasonably use would be to refuse to give a reference. There is no pay owing, she doesn't get paid for the school holidays.
     
  2. If there's no pay owing then it shouldn't really matter. The reference is an issue, but generally company-to-company references are just tick boxes that state: Has X had any sick leave? Is X punctual? They're usually taken with a dose of salt anyway.

    The only way they can reclaim any money owing is in lieu of holiday pay. If you have had holidays during the year-period then you may be deducted for any pro-rata'd holidays that you haven't physically accrued yet.

    Other than that, there's little point in them pursuing a week's pay through the legal channels from you. As long as you're up front with them and explain your reasons I think they'll be alright with it
     
  3. Pretty much my thoughts SoC.

    Any more views?
     
  4. The short answer is no, you can't enforce a notice period. If any money is owed to the employeer you can chase them for it or deduct it against any monies still owed to the employee, but thats it.

    I wouldn't give them an unfair reference or withhold a reference because of it either (particularly so if you've provided references for previous employees) as that can leave you on dodgy legal ground.

    You gotta suck it up i'm afraid.
     
  5. Notice periods vary, obviously, however companies usually take a pragmatic approach. Firstly depending on how intelectually sensetive the work is Garden leave is given straight away, as notice of leave is given. Garden leave isn't a good excuse to bugger off to Marbella for a week, as the employee is still bound by contract to be able to be contacted even brought into work for a specific reason.
    Sickness is entirely up to the company usually SSP in a lot of places. Also never a good idea to burn bridge's, you never know what's around the corner or whose arrse you might have to kiss.
     
  6. In this case she has moved 90 miles away from the workplace during their six week summer holidays (mainly unpaid), has written a letter of resignation which they claim not have received and they are now expecting her to go back for three weeks in September.

    I've told her to politely suggest that they ram it......
     
  7. Yep, ram away. The only thing I can suggest is for her to get a temp or valountary job as her next assignment (as they can accept character references), do a bang-up job for two/three weeks and then use that company as a future reference point.

    Best of luck, but there's no point d'cking around to the tune of their trumpet if she's leaving anyway.
     
  8. If she hasn't got a written contract of employment the minimum notice she need give is one week (assuming she's been there over a month).

    More odds and ends on the ACAS website here: Acas - Notice and rights

    added:
    They could refuse to give a reference if she's in breach of her contract of employment and I suppose there's an outside chance they could pursue her if they ended up having to eg pay an agency to fill in for her... but that's a whole different kettle of fish and probably not relevant in the short circumstances you outline.
     
  9. FWIW, I walked out of my Civil Service job on the day I handed in my resignation. What were they going to do - sack me? The NI Civil Service doesn't give references, and I got the pay I was owed within a week, by which stage I had already started my new job.
     

  10. It's a nursery, she's a part time Nursery Nurse, tell them to ram it, what are they going to do, sack her?

    Done it myself several times, wait for the pay to go in, remove from account, and stay at work the remaining days they may have paid you in advance (salary). Don't turn up the next working day after paid days are up. It usually gets the message through.

    Unless you're on mega money it's not worth the expense of pursuing.
     
  11. I don't know how important a reference is in the nursery nurse business but that's the only thing she really need worry (or not) about, it would seem.
     
  12. Ok so here's how it is.

    An employer in the UK is under no legal obligation to give a former employee a job reference at all. However if they regularly have given references for other people then it would be expected that they should give a 'confirmation of employment' dates reference at the very least. In legal world it's rare to get anything other than that because all law firms shit themselves about being sued over inaccurate referencing, so if they do it you can know that it's pukka.

    If an employer does give a reference it cannot contain any matters of opinion, only facts. If those facts aren't great (i.e. didn't work notice period, took loads of sick leave, always off sprogging etc) then they can still give them, however it is such a sticky wicket that no organisation would dare do it, because even with truthful facts if it leads to someone not getting a job, you can still claim against them if you think they provided 'selective' facts with malicious intent.

    Interestingly the claim for damages (if you fail to get a job as a result of a shifty reference) is done through the county court rather than an employment tribunal (which means it's a bit more accessable and has a few more powers available).

    Anyway, regardless of that, I'd tell them to shove it. It's a part time job, circumstances changed outside of the employees control (always say that, no way to prove otherwise). If they really want notice served then just go to the doctor, get signed off for stress, and take the entire notice period as sick leave.

    If you do that then they can't even say you didn't work your notice period.
     
  13. They can't refuse to provide a basic reference, it's the law.
    The reference need only confirm where the current place of work is and any sickness history.

    Walk, it's a problem if they haven't received the notice, but not irrevocable.
     
  14. Sorry but this is a common myth. Simply not true. Caselaw evidence:

    An employer does not have a common law duty to provide references for a serving or past employee unless there is an express or implied contractual term to that effect in the employment contract. However, it is rare for an employer to refuse - partly because it is established practice to provide a reference and a refusal could result in adverse consequences for the employee.

    Lord Slynn’s judgment in Spring v Guardian Assurance plc and others [1994] ICR 596, HL implies that there is a moral obligation upon the employer, however he stops short of saying that there is any legal obligation upon the employer.
     
  15. The circumstances outlined by the OP are clearly one to walk away from without worry. However the attidue towards contracts and notice periods astound me. I employ technicians who are contracted to give three months notice. (the normal minimum period I can recruit and train replacements in). 95% of staff that have left in the last 5 years have honoured these contracts. The potential loss of business if someone walked on the day could be >100k by my failure to service contracts the business has entered into. As a company we have used legal action in the past to stop someone just walking and I would not hesitate to do so again. Having said that if someone wants to leave then I will let them go as soon as I can replace them, generally at least a month early. A forced worker is no good to me.