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If the employer does try and recover agency pay then she will have to mitigate this by paying Susan for 6 weeks otherwise it is an admission that the contract was ended without a loss being caused by the resignation itself (someone would have to be paid to do the job). By the way, the 4 weeks sick note means that month cannot be claimed for either so the only claim could be for the difference between the agency costs and Susan's pay for 2 weeks. The employer has rather overstated the claim of what is likely to happen is push comes to shove.

I would get Susan to write and say that she tendered her resignation to be with immediate effect as she felt that as it was for the reason if work related stress she thought it was for the best interests of both parties that she went without exacerbating the condition which could lead to a claim against the employer for a common law tort for negligence (damage to her health). It was for the employer to either accept his or insist that she works her contractual notice period but if the latter then they must accept that Susan is unfit to work and has submitted a doctor's note to confirm that statement. When Susan returns to work in a month's time it will be to her contracted role and not to the supervisory position she was placed in without her express consent otherwise taht too could lead to a claim for breach of contract and a common law tort as described. Should her employer wish to reconsider and accept her resignation with immediate effect then all is required is a P45 and that a line can be drawn under the matter.

Tidy that up to suit

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Thinking about it ericsbrother, the employer did say she would forward on the P45, with this in mind, should we wait until this has arrived and then argue the case that the contract has ended if needs be, or write now asking if they want Susan to return for the last two weeks or not, great advice by the way, I can see some light at the end of the tunnel

Maddie

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There is confusion here about what, exactly, the boss wants.

 

She should write to the boss and ask him to definitively confirm whether or not he is willing to accept an immediate termination of the employment relationship. State that she understands the boss wished to accept immediate termination but that there seems to be some confusion over the matter. State that she would like to resign immediately but is prepared to work the notice period if required. This is the conservative way of making sure she does not have to pay any compensation.

 

If the boss does want her to work the notice period but she does not attend work, and a replacement is required, then she might be liable for the difference between agency fees and what she would have paid (not the full amount just the difference).

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Many thanks steampowered, got it all clear in my head now. Susan is coming over today and I will help her with the letter, as per the advice.

I will let all you kind people know how it pans out.

Many thanks again to everyone

x

Edited by maddiemay
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There is confusion here about what, exactly, the boss wants.

 

She should write to the boss and ask him to definitively confirm whether or not he is willing to accept an immediate termination of the employment relationship. State that she understands the boss wished to accept immediate termination but that there seems to be some confusion over the matter. State that she would like to resign immediately but is prepared to work the notice period if required. This is the conservative way of making sure she does not have to pay any compensation.

 

If the boss does want her to work the notice period but she does not attend work, and a replacement is required, then she might be liable for the difference between agency fees and what she would have paid (not the full amount just the difference).

 

Yeah, this is starting to drag...

 

...so, do the following:

 

1. Ask the boss (as steam powered has stated)

2. If he does not accept the resignation, then state that your niece will be returning to work once she is better and that she is expecting to be paid sick leave.

3. Then either return to work for those two weeks once she is better or get the doc to write up another sick note so she does not have to return to work.

 

She won't be liable for anything if she is off sick. As for employing an agency worker, they tend to be cheap on the short term.

 

If the director still insists that they will sue, claim that you will be taking legal advice since your niece was overloaded with work and is off sick due to it.

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It might be worth adding that Susan is willing to return to the nursery to work off the remainder of her 6 weeks notice pending further medical advice (she could be signed off for a further 2 weeks, begin a part-time phased return or work full-time for the final two weeks - but there is no need to be that expansive in a letter to the employer).

 

Interesting point about the period of the sick note. If Susan was off sick due to stress for the whole of the six week period would there be any liability to pay anything?

 

I would add, as a separate (and more important) issue that the employer owes a duty of care to ensure that the nursery is a safe and healthy environment for staff..... and the children.

 

If this nursery is being run with less than minimum staff and children are being put at risk there could be safeguarding children issues here which should be reported to the 'nominated safeguarding children adviser' at the nursery (there should be an employee which fulfils that role) or to the local authority's child protection team (I assume that could be done anonymously?). The children's best interests should be paramount.

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I would add, as a separate (and more important) issue that the employer owes a duty of care to ensure that the nursery is a safe and healthy environment for staff..... .

 

Director is being negligent in their duties.

 

You cannot be sued for being off sick? It is not reasonable to expect someone to come into work if they are not capable of working. If she had broken her bones she would be incapable to work.

 

Returning to work might aggravate the stress/anxiety. The last thing you need is an idiot threatening you while you are at work where you would be inclined to make mistakes.

 

The director is paid to manage the company. Let the worry about it.

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Thank you everyone, the letter has been delivered, Susan asked to have it clarified whether the resignation has been accepted or not as she has had conflicting information from the letters received. By all accounts its the topic of conversation at, at least two of the nurseries, lack of confidentiality springs to mind!

Anyway, I wont bore you all with this any further, until we get a response.

Once again, many thanks

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  • 2 weeks later...

Quick update

Susan received a letter from boss/owner yesterday. Contents make no reference to the letter hand delivered (by me so I know for sure it was delivered) in fact it says words to the effect of, since you haven't been in contact, to discuss the monies you owe, I intend to instruct my solicitor. The boss is either trying to be clever by not acknowledging the letter, and therefore not having to answer the question ( does she want Susan to work the last 2 weeks or has she accepted the immediate notice) or the lady I handed it to didn't pass it on, which I find very hard to believe.

 

This is dragging on now, I know Susan wants it sorted one way or the other, but this boss lady really does seem determined to make Susan pay! Interesting how she wants to discuss money before the 6 weeks are up, how can she know already what her actual losses are, before they've actually been incurred! I

Edited by maddiemay
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Well, bat it back into the employer's court. Write a brief email/letter referring to the contents of the hand delivered letter (you kept a copy I presume?) - why hasn't she replied to that? (Did you get someone to sign for receipt of that letter?).

 

At this point Susan doesn't necessarily owe any money so why would she be discussing such a thing? On the face of it the employer has to either accept Susan's immediate resignation or knows she is off sick while working her notice.

 

It is not dragging on - there is a 'natural' life of six weeks on this. It might be worth reminding Susan that she initially breached her contract - so she is hardly in a position to start getting restless - she is not out of the woods and could potentially still pick up a substantial bill. There is nothing cut and dried about this either way. Susan's impetuous move to resign has created this problem, more impetuous behaviour is hardly going to resolve it! Think clever - don't make it hard for yourselves.

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Don't get me wrong, I only meant dragging on because we still haven't got an answer, therefore Susan still has the dreaded thought that she may be forced to work out the last 2 weeks alongside a boss who clearly has no interest in her well being! I didn't get a signature for the letter, the secretary buzzed me in as she was on the phone at the time, waved her arm at me to leave the letter on the desk, then ignored me whilst I waited by the door to be buzzed out again, if another nursery worker hadn't come along, who knows how long I would have stood there like a lemon! I suppose the good thing is that I'm not a pervert as I was allowed to be unsupervised inside a nursery full of children!

Susan was not well when she resigned, had the boss had a little compassion during their meeting a few days before when Susan was clearly distraught this may never have happened and Susan would still be doing the job she loves! Apparently the boss ripped down the staff photograph of Susan the same day as the resignation, and sent out a formal letter to the other staff to say Susan has left, makes me wonder why she doesn't want to officially tell Susan her resignation was accepted!

 

I emailed and attached a copy of the 'missing' letter yesterday, asking for it to be located as it contained the medical certificate, which obviously contains personal information. Obviously I know full well it isn't lost, she's just playing silly games in the hope Susan will crack and hand over whatever money she demands.

Susan will pay whatever amount she is legally obliged to pay, and this has always been the case, she was never trying to get away with anything, but I will not allow her to be bullied any longer by this woman.

Thanks for your input guys, as always it's much appreciated.

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Well good on you for plugging away. Given the stress Susan is under it wouldn't surprise me if she was signed off sick for the last two weeks as well. If she was off sick how could she be liable for any costs? The employer's recent letter(s) (ignoring her illness) doesn't leave the employer in a good light.

 

Might be handy to get a copy of that letter which was sent out to the other staff telling them Susan had left to see what it says (is there a friendly member of staff who could slip her a copy on the quiet?).

 

If Susan does have any confederates left in the nursery it might be worth finding out how the place is coping without her? Has her employer indeed brought in agency cover yet?..... from what you have said previously the employer tries to run the place understaffed..... if it is her natural inclination to watch the pennies it wouldn't surprise me if no agency staff have been brought in at all to cover for Susan. (Might be worth checking).

 

The work place is full of abusive managers and employers. At my old company there was one quiet, humble bright chap who was pivotal to the success of the place but who was constantly humiliated in front of his own staff by self-regarding 'alpha male' line management 'you're useless etc;'.

 

Well this 'useless' being got fed up being abused and found a higher paid job with another company. When management found out they did everything they could to stop this 'waste of space' from leaving - insisting he had to give a minimum six months notice (up yours!) and flatly refusing to give him a reference (despite his long service).

 

The new employer still took him on as they could see the value he would bring. I still see him for a drink occasionally - he is happy, looks relaxed, enjoys work and has the good grace never to bitch about the old job. He has moved on.

 

I hope Susan doesn't let this experience put her off what she wants to do. In many ways she may have gotten off light - some people stick such conditions for years before they finally bail out. The next kids-related job could be totally fab! I guess at 19 she hasn't had too many other jobs to compare it too. Don't let it put her off what she wants to do.

 

While she looks for another job it might be worth considering some part-time voluntary work with kids. I'm sure most community groups or charities would welcome her help with open arms, and it can be short-term with hours that suit her. Check out the local CVS website in your area. A bit of appreciation might do her a world of good right now. A genuine 'thank you' could be good for her head and her soul right now.

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Thanks for the kind words sweetlorraine, Susan has just received another letter today, apparently our letter could not have been hand delivered on the 17th as it wasn't in her tray until yesterday! dam cheek of the woman! How odd, she only found it yesterday, the day we e-mailed her!

Letter states she did accept Susan's resignation with immediate effect as per Susan's letter of resignation, but she's still liable for the agency staff due to her sudden departure, to date it is over £300, also an £800 college course which she started (she actually didn't, first one was the day after, day of resigning) letter says she must pay this as she signed to say she would, I won't go into that just yet though, one thing at a time.

Letter says, Susan must contact her to discuss payment before 29th November, if she doesn't on the 20th December she will instruct her solicitors to take action.

Susan seems happier, but I think that's probably down to the medication kicking in, if only I had known the pressure she was under beforehand, I would have suggested she speaks to her GP rather than resign.

 

I'm not sure what the next step would be, could anyone advise please, could do with some help from here.

 

It was nice to hear there was a happy ending to your story sweetlorraine, shows there are some employers that do value their employee's, I have been lucky enough to be one of said valued employee's

Thanks again to all that have commented

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Hmmm, that contradicts her first reaction/letter which was that Susan had to work her notice.... then the employer seen the sick note, then there is a change of tack. If she has a college place available at £800 it might be worth contacting the college and finding out how much it costs to cancel it right away (at the beginning). If the full amount has to be paid, and you feel that Susan will have to pay it whatever happens with the nursery, how would Susan feel about attending the course? It would improve her job prospects and it would be a shame to let an opportunity go begging. (A silver lining of sorts?)

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Oh yes absolutely that was the reason she changed her mind, she was quick off the mark in returning her P45 and medical cert. I have just discoverer the college course is at a college miles away on a Saturday, the reason this course was chosen was because it was the cheapest, Iam so cross with Susan for signing all these documents without anyone else having a look first, although to be fair, at the time she was very happy and had no intentions of leaving, she wasn't to know then, that the fully trained lady in the classroom was being replaced by a new team leader (the one that has since left) who turned out to be unsuitable.

 

Starting/continuing with the course is not an option unless in employment in child care, I asked that same question. It seems that Susan will have no choice but to repay the course fee to the employer, and is fully prepared to do so.

 

Could sweetlorraine or anyone have a brief run through of the situation and advise me of how to reply to the employers latest letter, now she has confirmed in writing she accepted the resignation with immediate effect. I'd be really grateful

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The boss can't accept an immediate resignation and still pursue for damages. Now that the boss has put he/she accepted an immediate resignation in writing I would think that is very difficult to contest.

 

The training thing is a separate issue.

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Thanks for that, I was told earlier in the thread that if the employer accepts the resignation she can't then sue for any losses, I do hope this is the case, at the moment I think she's banking on Susan's naivety and good nature.

So in short,

If employer accepts immediate resignation, contract is terminated.

OR

If employer doesn't accept immediate resignation, Susan must work her notice

BUT

Susan is signed off unfit for work during the notice period, how does this figure in things?

 

So sorry to go over it again, but I' need to have it clear in my head before I draft another letter for Susan

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Hi maddiemay,

 

it may be worth waiting for one or two of the HR professionals to advise on how to draft a letter to the employer. I can only offer a layperson's opinion.... and a few debating points for consideration.

 

It occurs to me that since Susan was sick and covered by a GP's note she would have been too ill to attend the course anyway. (The college may even have insurance to cover this eventuality - hmmm, maybe?)

 

Furthermore if there is a course requirement that Susan had to be in childcare work, and the employer accepted her resignation it would seem that the employer may have automatically negated Susan's suitability/availability to attend the course in the first place.

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Thanks for that, I was told earlier in the thread that if the employer accepts the resignation she can't then sue for any losses, I do hope this is the case, at the moment I think she's banking on Susan's naivety and good nature.

So in short,

If employer accepts immediate resignation, contract is terminated.

OR

If employer doesn't accept immediate resignation, Susan must work her notice

 

Yes.

 

BUT

Susan is signed off unfit for work during the notice period, how does this figure in things?

 

If the employer accepts immediate resignation, doesn't matter because contract is terminated.

 

If employer does not accept, then failure to attend work due to illness would not be a breach of contract.

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That's great steam powered, I just needed reassurance of that, the last thing I want to do is make it worse for her. College course was funded by someone, but not the employer, so it's only fair Susan repays that, not sure though how we will go about finding out who, first port of call is college which I shall do in a mo.

 

Would it be the right time to contact employer and bring up the terminated contract issue, or leave it for now, I don't want to anger the boss anymore than she already is, in fact If it was up to me I would want to ask her why she didn't take the necessary steps to protect her employee when she was sat in front of her crying her eyes out! Or why she allowed under qualified young girls to be looking after these children with no supervisory staff present! But as I said these accusations wouldn't help Susan now, so best left unsaid.

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Hi maddiemay,

 

the ex-employer wanted you to get back in contact by Friday 29th re payment?

 

You could let that date go by without doing anything, or you could write to the ex-employer, perhaps simply stating that Susan was prepared to see out her six week's notice (and is still willing to) but since the ex-employer has instead decided to accept Susan's immediate resignation you/Susan does not understand why she is liable for any further costs. (Keep it brief).

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I'm not sure there is any point playing letter tennis to be honest. Its a judgment call but personally I wouldn't respond to the latest later, only if she receives a formal letter of claim.

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I'm going to suggest to Susan that she has a couple of days break from it all, so won't write to employer just yet, but obviously before the deadline.

The more Susan tells me the more outraged I become, it seems on some ocassions, she and one other young girl have been left in sole charge of up to 24 children! I think most people would find that hard, not to mention the ratio to children legal issue!

 

This employer had her chance to deal with Susan's worries but choose instead to intimidate her and pile on more pressure rather than reasure her things would change, and for that reason I will make sure Susan pays no more than she is legally obliged to

 

You guys have no idea how grateful I am to you, it would have been very hard to know how to deal with this without you, so thank you once again

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