Notice to resign

[Matt84863]

Hi,

 

I am hoping someone can help me! 
 

My Wife was offered a new opportunity which pleased me greatly as her current employer is terrible, along with some of their very questionable work practices.

 

Her new job starts in September at a school and therefore her employment would start some time in the future.

 

With this in mind we were unsure for her to delay handing in her notice at work or to give forward notice of the 28th August.

 

We chose the latter as due to the nature of her current employer, we felt they would absolutely cause issues for her should they find prior to the actual notice that she had been offered another job, should references be requested.

 

There have been many recent issues of shocking HR practices I would be able to elaborate on if required. 
 

They initially replied with a letter saying (Not verbatim)  ‘thank you for your letter giving four weeks notice...your last date of employment will be xxxx’ which was surprising as they did not acknowledge the fact she had said that she was giving more notice than she needed to and effectively was not true as at no point did she give 4 weeks?! Or stating that she only needs to give 4 weeks. 

 

She spoke to ACAS who initially said they couldn’t force her to leave earlier as this would constitute sacking etc. Having had more communication back and forth from her employer ACAS have since said is is dependant on the wording in her contract.

 

I am confused how this could have changed?!

 

She has worked for this employer for nearly 3 years, been expected to work, train and attend meetings without pay or time in lieu and as above there have been other disgraceful practices with regards to other employees as well as her.

 

Long and short is they have offered to extend employment until 31st July but that leaves her a month without pay or working tax credits as she works 16 hours per week.

 

Any advice would be gratefully received. 
 

Could she withdraw her notice? As she is still within the initial 4 weeks?

 

Regards

 

Matt Taylor

[ericsbrother]

how long has she been employed?

as ACAS says it depends on her terms of employment but what I would do is look at any holiday owed and add it to the end of ther notice period rather than take it during unless her contract forces her to take leave during notice.

the devil is in the detail

[Matt84863]

Thanks,

 

She’s been there nearly 3 years.

 

They offered to extend to 31st July to include 1 weeks holiday she has accrued.

 

Regards

 

Matt

[ericsbrother]

you will need to read her contract/terms of employment, it is common for employers to say the notice period is a fixed one rather than a minimum when it suits them.

I would also do my own calculations for accrued paid holiday rather than just accept their word it is a week.

can she withdraw her notice? yes but some employers wont accpet that as they will say the trust between employer and employee has broken down.

You could take advice from ACAS about this, they may think that it is procedurally flawed and advise accordingly and telling employer that they have been consulted if things are in your favour may well make them reconsider.

[Matt84863]

Thanks,

 

The holiday calculation is correct and they do owe a week. The contract could be argued either way I agree and there is no real justification for not allowing her to continue until 28th August. The company has made up some reasons that can easily be dismissed by their actions, however these would not necessarily grounds for wrong doing.

 

They initially said as she was furloughed they could only take 4 weeks (as she wasn’t currently working) and that due to operations they felt it was inappropriate to keep someone they knew was leaving due to issues with child continuity at the nursery. This is despite the Nursery having a 3 week rolling furlough schedule with their staff who worked 3 weeks and were then furloughed again and so on. I don’t believe this was the purpose of it if it sheds any light on wrong doing?

 

They could keep her furloughed until 28th August and she has requested this, however the came back with more lies regarding Employer’s NI that they would have to pay despite her falling under the threshold to pay it.

 

There is no way they would agree to withdraw her notice! 

 

Not sure where we can go from here.

 

Regards

[Matt84863]

Any further assistance would be greatly appreciated.

 

Regards

 

Matt 

[honeybee13]

What questions do you have remaining, Matt?

 

HB

[Matt84863]

Hi,

 

We just need to know if there are further grounds to be able to pursue this matter.

 

Her employer has agreed to extend until 31st July, however won’t until 28th August.

 

It will mean that Tracey will have serious financial issues not having any income come the end of August along with working tax credits she will lose that will significantly affect her income.

 

Regards

 

Matt

 

 

[Ethel Street]

Can you post up the exact wording of the notice period clause in her contract of employment please.

[Matt84863]

Hi,

 

she is waiting for a copy.

 

Although she has been made aware of the company allowing another employee in a similar position give notice and have accepted this until the end of August?! 
 

Could she claim discrimination? She’s worked there nearly 3 years and the other person apparently less than a year!

[Emmzzi]

discrimination requires a protected characteristic, in law. is there one which applies?

 

Regardless, pursuing this through court will be lengthy and stressful and will not solve the immediate funding issue.

[Matt84863]

Hi,

 

To give an update, Tracey requested a copy of her contract to provide the relevant wording however it seems she never actually signed one.
 

She received the usual ‘implied contract obligation’ and that Tracey having mentioned ‘a contract’ (despite the company rebuking the content as inaccurate) in a previous email they seem to discredit their own point. 

 

We have referred to the wording in her employee handbook which states that the ‘usual’ notice is a month.

 

We have also found that despite the company digging in their heels with regards to this, another staff member with only 8 months service has been allowed to give notice for the end of August, in contrary to all their previous correspondence.

 

Whether this is deemed as discrimination, it is certainly showing as unfair to not agree to Tracey with nearly 3 years service. 

 

I would appreciate some further advice. [Mobile number removed]

 

Regards

 

Matt

[honeybee13]

Matt, I've removed your mobile number. We don't give advice off forum and in any case we recommend everybody not to put personal details on the internet.

 

HB

[Ethel Street]

34 minutes ago, Matt84863 said:

We have referred to the wording in her employee handbook which states that the ‘usual’ notice is a month.

 

 

Can you post up the full wording of what the staff handbook says about notice please.

[Matt84863]

Hi,

 

the wording is as follows:

 

When a handbook wishes to hand in their resignation they follow the procedure set out in their contract. A typical length of notice is a month. The staff member must put in writing their resignation.

 

A little vague I appreciate.
 

 

[ericsbrother]

You dont have to sign a contract, working for someone and agreeing to certain conditions create an implied contract. All matters that are the law of the land such as health and safety are part of that inplied contract so no employer can claim  otherwise. The contract was created by working there for more than a month. If they havent actually given her written terms or they arent available on the intranet as an alternative them they have broken the law and that give your wife a bit of leverage and a ci[ple of weeks pay when she drags them through the Employment Tribunal.

 

the wording you have just posted amkes her resignation correctly doen and they cant tell her to go earlier unless they want to pay her off.

Wha she needs to do is remind them that her letter does fulfil her contractual obligations and she expects to leave on that date or be paid off for her notice period. she should let them know that she is willing to take the matter to an ET if necessary.

They are currently not paying her, the govt is but they will have to pick up the tab for a month hence their desire to persuade her she is wrong

[Matt84863]

Thank you.

 

They did refer to an implied contract as she mentioned her ‘contract’ in her resignation. She gave notice for the 28th August and referred to the minimum 4 weeks notice in her ‘contract’. The Nursery quickly rebuked as inaccurate Claiming it was not a minimum but a fixed term. They are claiming that she was fully aware of her contractual obligations in their last letter today, despite in their eyes not conveying her contract accurately at all? Seems very odd.

 

We have made it clear that we will pursue this at ET as we feel that they are being unfair and ultimately sacking her before her notice. To find another employee having been accepted for the same notice just makes no sense that they would not be consistent, especially as the other employee has no statutory rights and Tracey does.

 

I suggested they keep her furloughed until her last day as an easy way to resolve and yet again they managed to find barriers that don’t exist, for example employers NI costs they would have to pay despite being under the threshold.

Her holiday entitlement wouldn't change either as she would not have completed another month.
 

Is there anything other I can say? I have suggested to my wife organising a face to face meeting with the Director in an attempt to resolve. I know that an ET would look favourably on any attempt to continue dialogue to ideally resolve prior to any hearing.

 

Regards

 

Matt

 

 

 

[Manxman in exile]

Wouldn't it be simpler not to bother with an Employment Tribunal?  Your wife leaves on 31 July and then you sue them in the small claims court for wages ( plus any filing fees ) from 01 August to the leaving date she originally wanted.

 

I see this as a simple money claim, not an employment issue.  They might not even defend it.

[Matt84863]

Yes but I think in a small claims court it will be far harder to prove. I have plenty of evidence to discredit the Director but again it could still not be enough.

 

She will be a month with no money and I think it’s far more risky than a tribunal where this action alone could result in the desired outcome.
 

I have said to her to request a face to face meeting to enable both parties to conclude, ideally resolve and at that point we can decide what action we wish to take.

 

 

[Manxman in exile]

I would have thought it easier in small claims.  Your wife very kindly and considerately wrote to her employer offering more notice than she was obliged to do.  No doubt she had the best interests of her employer in mind and wanted to give them adequate time to plan ahead and find a replacement.  To her amazement, her employer took advantage of her kindness and unreasonably treated her notice as taking immediate effect, blah, blah blah.

 

Personally, I think an argument like that is quite likely to succeed in small claims where they won't be accustomed to arguing the niceties of employment contracts.  It's obvious your wife is being taken advantage of.

 

Again, I think you are more likely to get an even-handed and fair hearing in small claims than at an ET.

 

However, I'm not a lawyer and I'm definitely not an employment lawyer.  See what others advise and whether anybody else thinks it would be easier and more likely to be successful simply to sue.  (Oh - and remember if you want to sue them for the money you've got six years to do so, whereas the time limits for ETs are ridiculously tight.  Can't remember off the top of my head but is it something stupid like 60 or 90 days?  Ridiculous).

 

Of course there may then be issues about getting future references from them.  But if you go down the ET route that'll likely be a problem anyway.

 

 

[Ethel Street]

14 hours ago, Matt84863 said:

Claiming it was not a minimum but a fixed term.

 

To my mind this is a key issue.  Some contracts say notice period is "one month", others can say "a minimum of" or "at least" one month.  If the your wife's says the former then the employer is probably acting legally in saying that notice ran for exactly one month from the day they received it. If it's the latter then your wife was entitled to give notice to expire 28th August.

 

Does your wife still have her original job offer letter from 3 years ago? What does that say about notice? 

 

Before starting court/tribunal proceedings I'd ask for a copy of the standard contract form used for your wife's position and see what that says. If you started proceedings you could get it in discovery but it would be better to find out beforehand if you can.

 

I'm afraid the fact that you know of examples where the employer allowed a longer notice period is unlikely to help you in court. The employer would simply say that it has the discretion to allow a longer period if it chooses to but it didn't choose to for your wife. 

Edited July 4, 2020 by Ethel Street

[Emmzzi]

10 hours ago, Matt84863 said:

Yes but I think in a small claims court it will be far harder to prove. I have plenty of evidence to discredit the Director but again it could still not be enough.

 

 

 

None of that will be relevant. It's a very simple case which is about contract law. As ES says, get a copy contract. Then use moneyclaim online. Much less stressful than all the unnecessary drama and delay of an ET.

[Manxman in exile]

27 minutes ago, Emmzzi said:

 

None of that will be relevant. It's a very simple case which is about contract law. As ES says, get a copy contract. Then use moneyclaim online. Much less stressful than all the unnecessary drama and delay of an ET.

 

That's my view.  Where you've got some employment dispute which is really about the payment of money (as opposed to whether or not you've been unfairly dismissed or something) I don't understand why the first port of call is often a ET rather than a small claim.  You've got longer to do it than with an ET and I agree it's much simpler and much less stressful than an ET.

 

I also suspect an employer is more likely to overlook a small claim and end up losing a default judgment.  You still need to enforce it of course, but I suspect Nurseries prefer to avoid bad publicity if they can.

 

But I'm no employment law expert.

[Matt84863]

Hi all,

 

Just an update with contractual terms. These terms are from a contract at a similar time to when Tracey started as we think they have changed since.

 

The contract reads as follows:

 

Termination of employment 

Xxxxxxx (Nursery) will provide written notice of termination of your employment in accordance with statutory requirement (currently 1 week’s notice for each year of continuous service, up to a maximum 12 week’s notice).

 

Once you have successfully completed your probationary period for the company you are required to give 1 month’s written notice of termination of employment.

 

Regards

 

Matt 

 

 

 

 

 

 

[Manxman in exile]

Well it doesn't say "...you are required to give notice of at least, but not exceeding, one month..."

 

In my view giving three months notice meets the term you quote.  But that's just my view...