new job

[jackiefox]

I have worked for my present employer for nearly 3 months. I only work for 4 hours a week, but i have an interview for a job with more hours which if offered i intend to take.

My present employer say that i have to give 2 weeks notice or i will lose 2 weeks money out of what i have already worked. Can they do this? and do i have any rights?

[honeybee13]

Hello there. What does it say in your contract about this please?

 

My best, HB

[elpulpo]

Do you have a written statement of particulars of employment, given to you by your employer? This should set out the period of notice you are required to give.

Also, for them to deduct 2 weeks money from your wage, in the event that you were not to give notice, there would have to be prior contractual provision (or your prior written agreement) that they could do that.

Failing contractual provision, the statutory notice period is one week.

[SarEl]

Also, for them to deduct 2 weeks money from your wage, in the event that you were not to give notice, there would have to be prior contractual provision (or your prior written agreement) that they could do that.

 

Nope sorry! It doesn't matter what the contract says. people are entitled to be paid the wages that they have worked for, full stop. If you have worked for the money, then the employer owes it to you. If the employer made any such deduction it would be unlawful. Deductions, where lawful, must be for money owed (as in you owe the employer a bill for training courses or something). The employer cannot "bill you" for a court judgement of loss which he does not have!

 

If you fail to give contractual notice then the employer can sue you for quantifiable losses only - this very rarely happens, although it can! So if it did - although it rarely does - then you have been warned!

[elpulpo]

Nope sorry! It doesn't matter what the contract says. people are entitled to be paid the wages that they have worked for, full stop. If you have worked for the money, then the employer owes it to you. If the employer made any such deduction it would be unlawful. Deductions, where lawful, must be for money owed (as in you owe the employer a bill for training courses or something). The employer cannot "bill you" for a court judgement of loss which he does not have!

 

If you fail to give contractual notice then the employer can sue you for quantifiable losses only - this very rarely happens, although it can! So if it did - although it rarely does - then you have been warned!

Really?!? I always thought that if there was pre-existing contractual provision for a deduction being made in such a circumstance, then it was lawful. I've googled 'deductions from wages' and many websites seem to suggest that too.

From directgov.uk-

Rules for making deductions from your pay

 

Your employer is not allowed to make a deduction from your pay or wages unless:

 

 

• it is required or allowed by law, for example National Insurance, income tax or student loan repayments
  
• you agree in writing to a deduction
  
• your contract of employment says they can
  
• it is a result of any statutory disciplinary proceedings
  
• there is a statutory payment due to a public authority
  
• you have not worked due to taking part in a strike or industrial action
  
• it is to recover an earlier overpayment of wages or expenses
  
• it is a result of a court order or Employment Tribunal decision
  

A deduction must not reduce your pay below the National Minimum Wage rate (except a limited amount for accommodation). This applies even if you have given your permission for it.

If you were overpaid in error, instead of making a deduction, your employer may try to recover the overpayment by making an application for a court order. For more information about how and when you might be able to prevent your employer from taking back an overpayment, you should speak to one of the following:

 

• a solicitor
  
• an Acas (Advisory, Conciliation and Arbitration Service) adviser
  
• a Citizens Advice Bureau adviser
  

 

You're absolutely sure SarEl? You've been wrong before:-)

[MrBlack]

I have worked for my present employer for nearly 3 months. I only work for 4 hours a week, but i have an interview for a job with more hours which if offered i intend to take.

My present employer say that i have to give 2 weeks notice or i will lose 2 weeks money out of what i have already worked. Can they do this? and do i have any rights?

 

Most employers accept that the transition period between moving jobs and factor that in to their recruitment process. Why the need to *not* give the two weeks notice your old employer is asking? Is your new employer that impatient?

[jackiefox]

It does not say that is a contract its more of an information sheet, about company policies.

[SarEl]

Really?!? I always thought that if there was pre-existing contractual provision for a deduction being made in such a circumstance, then it was lawful. I've googled 'deductions from wages' and many websites seem to suggest that too.

From directgov.uk-

Rules for making deductions from your pay

 

Your employer is not allowed to make a deduction from your pay or wages unless:

 

 

• it is required or allowed by law, for example National Insurance, income tax or student loan repayments
  
• you agree in writing to a deduction
  
• your contract of employment says they can
  
• it is a result of any statutory disciplinary proceedings
  
• there is a statutory payment due to a public authority
  
• you have not worked due to taking part in a strike or industrial action
  
• it is to recover an earlier overpayment of wages or expenses
  
• it is a result of a court order or Employment Tribunal decision
  

A deduction must not reduce your pay below the National Minimum Wage rate (except a limited amount for accommodation). This applies even if you have given your permission for it.

If you were overpaid in error, instead of making a deduction, your employer may try to recover the overpayment by making an application for a court order. For more information about how and when you might be able to prevent your employer from taking back an overpayment, you should speak to one of the following:

 

• a solicitor
  
• an Acas (Advisory, Conciliation and Arbitration Service) adviser
  
• a Citizens Advice Bureau adviser
  

You're absolutely sure SarEl? You've been wrong before:-)

 

Absolutely positive - because you are misunderstanding what a lawful deduction is. In very basic terms, a lawful deduction must be something which the employee "owes" whether that is to the government (such as tax and NI), a court (as in a court order) or the employer (such as, we paid for your training and you signed a training agreement). Simply because the employer says that they will "charge" the OP two weeks wages for leaving without notice does not mean that they can. There is no right for an employer to do this. If you have worked for your wages, then in the absence of a lawful deduction or an legal ruling, then they are owed to you. The determination as to whether they are lawfully owed that money is a courts, not theirs. Admittedly, the problem is that if they hold your money, you would have to sue to get it off them - although that can obviously be done free of chrage (for now) in a tribunal, and few such cases would ever get to a tribunal because the employer would settle.

[elpulpo]

So, for example, from the WSoPoE from my previous employment

 

"The first six months of your employment are considered a probationary period. After this initial successful assessment period your contract will be confirmed and, apart from instant dismissal for matters of serious misconduct, normal notice for terminating employment from both parties will be four weeks. Monies may be withheld in lieu of notice such that if you leave without giving proper notice we shall deduct a day’s pay for each day not worked during the notice period from any final salary payment due to you. The amount deducted is a genuine attempt to assess our loss as a result of you leaving without giving full notice."

 

If I'd walked out without giving the appropriate notice, my employer couldn't have legally witheld any money owed to me? I'm confused, this goes against what I'd always understood. (and, thinking back, I may well have a claim here or there, in the CC)

[SarEl]

You may well indeed. I am thinking of revising all my staff contracts to say that they will not be paid anything in the third week of June because it's their donation to my birthday celebrations. And if you are daft enough to sign a contract like that, can you come and work for me and I'll let you have the revised contract!

 

The law is very clear about breach of contract claims, and that is one of the reasons why few employers go after them (albeit, as I keep emphasising, they could do so). A "genuine attempt" at anything won't hold up in court - they can sue, but only for quantifiable loss. So, for example, your notice is 4 weeks and you get paid £100 per week, and you leave without giving notice. They have to get a temp in to cover your absence, and the temp costs £120 per week. Their quantifiable loss is £20 per week - £80. But you actually walked out because they - ooh pick a scenario - told you that they were not paying your 3 weeks sick pay even though your contract said that they had to (no discretion clause). They breached the contract frist, you are entitled to walk, so they can't even get the £80 (although I would hope you had countersued for the sick pay breach of contract!). In other words, there are vailid reasons why someone may walk out without giving notice, so whether you owe them any money is actually a matter at law - and until the law has determined otherwise, you don't owe it to them. So this is not really a deduction - it is a fine. And fines aren't allowed - unless your contract specifies them and they have held a lawful disciplinary procedure (and even then they are dodgy in law) before fining you!

 

These types of cluases are very rare, and about as enforceable as "though shalt not work for an employer like us anywhere in the county and three counties along". They depend on the gullibility of staff - partly in not reading them before the sign, and then on staff thinking that having agreed to something they have to abide by it.

 

Of course, as you well know, I would never advise someone to quit without giving notice - just because it is rare that employers can qunatify their losses does not mean it is impossible, and I don't really think that two weeks is unreasonable either! As an employer myself, if someone offered to start immediately when already in a job, I would (a) be wondering what the rush was and (b) wonder if the right job came along then would they leave me in the lurch too. Might put me off them. I also happen to think that you ought to because you expect the employer to as well - to be honest it is one of the few areas of law where I think that the employer has few rights and could be a bit tougher, because people simply walking out is very disruptive in many situations.

 

By the way, slightly off topic - but I also have to point out that there is no reason at all in law that you have to sign a contract or sign that you agree to it. You will find that most of my friends either forget entirely to sign and return it, or cross out "I agree" and put in "I have recieved a copy".

[elpulpo]

We are getting off topic, the OP's probably cleared off to Money Saving Expert by now:-)

Still a bit confused, is that a yes to #9?

[SarEl]

We are getting off topic, the OP's probably cleared off to Money Saving Expert by now:-)

Still a bit confused, is that a yes to #9?

 

Not apart from the last couple of lines - the rest was the jargon free legal explanation of why the answer is yes!

[elpulpo]

Right, I'm with ya. Sorry, haven't been to sleep for quite a while..

What's the time limit for bringing a claim in the CC?

[SarEl]

Six years. Of course, before you rush off - do remember all the bits I keep mentioning about counter claims! That is the way employers usually play it - wait till you claim and them counter-claim (if they can. Few inititiate the action themselves.