Notice during probation period

**efpom** · 8th May 2019, 21:47:PM

It will be fun in the DWP when it drops to the fact that you have two Class 1 Contributions for the same day!

The implied employment contract term of mutual trust and confidence has irretrievably broken down. The employer may think your are still his employee, but you do not agree. His remedy, and his only remedy is to sue for damages for your breach of contract, by quitting without giving 3 months notice - unless you were a genius brought in to save the firm from collapse, the quantum of loss after 1 months employment would be miniscule. I suppose you could write to him telling him that as you are no longer his employee, you require him to pay any arrears of wages and issue the relevent compulsory P60?

**ULA** · 9th May 2019, 09:54:AM

I suggest that you write back to your ex-employer and politely state that you consider that you have left their employment, that you provided one month's notice which is more than the statutory entitlement (I appreciated that your contract over-rides statute as the period is longer but nevertheless it makes a point) and that you will not be returning to work for them.

I presume that you have been paid all monies owing to you up until the date you left including any accrued but untaken holiday. If that is the case finish off by requesting your P45 and also if you were employed by them at the end of the tax year they should provide you a P60 for the year 2018-2019 if they have not already done so. If you have not been paid all monies owing then add the details of what you believe is outstanding into the letter and request payment. Your employer can only withhold wages and holiday pay already earned if there is a clear clause in your contract allowing them to do so.

**Legaleagle28** · 11th May 2019, 12:33:PM

Thanks both!
I responded with the above and a stern email.

They have responded by stating that unless I come abck
to work or have a discussion with them then they will send my case to solicitors and commence legal action against me!

They wont leave me alone!! I was only there for 5 months.

I am worried they could could stop me starting my new job??

**efpom** · 11th May 2019, 12:48:PM

May I suggest you post up your correspondence to your former employer and post up it's response.

**Legaleagle28** · 12th May 2019, 21:09:PM

Thank you for your email.

In your email you raise a number of points that X will need to respond to, including matters which it disputes, including your position on notice and the issue you raise regarding your management.

Before this is passed from HR into Legal and before things escalate, I wanted to reach out and make sure I am aware of all of the facts when considering our reply.

My impression is that you may have found yourself in a difficult position having promised to start work before your contractual notice period expires. If this is the case, then this is something we would like to know and work with you to resolve. If you wish to maintain the matters raised in your letter then I will pass the matter over to our external lawyers.

It is important to stress that X’s stance on your notice period is not personal – it is simply the case that we need the skill and expertise of someone in your role and absorbing your duties within the team puts additional work pressures on the other team members. We appreciate staff move on and that replacing you after your notice period is an issue for us to address. We did, however, count on your support during the agreed notice period and require employed lawyers to set the right example by adhering to contractual obligations.

If there is a conversation you wish to have but feel you cannot, please let me or XXX know. If we do not have a response, we will formally respond to your letter.

Pending this, X reserves all its rights

**efpom** · 12th May 2019, 21:18:PM

Are you a solicitor or are you a barrister?

**Legaleagle28** · 18th May 2019, 12:21:PM

I am a solicitor.

They are still not leaving me alone and are stating they do not accept my breach which means they will pay me etc. my ex manager is clearly taking this very personally but I don’t know what to do now...

**ULA** · 20th May 2019, 08:36:AM

As a solicitor you should understand the basics of a contract - sorry to be so blunt. You stated in your first post that you thought 3 months notice in your probationary period was unreasonable however you signed it without querying it so you knew what notice period you had to give. Agreeing to start a new job without having agreed and received confirmation to a shorter notice period on handing in your resignation is not a smart move.

Have you started your new job?
Have you had further correspondence since your post #6?

**efpom** · 20th May 2019, 09:45:AM

You seem to me to have exposed yourself to the following risks:

You may be sued by your current employer A, for damages flowing from your breach of contract by failing to give 3 months notice of your decision to quit your current employment.

You may be sued by your prospective employer B, for damages flowing from your breach of contract in failing to begin your employment with it.

If there is a hint of dishonesty, in your dealings with either, you may find yourself in the position of appearing before the SRA to answer to that.

My advice, for what it is worth, is to be frank with both existing Employer A and prospective Employer B, abide by your contract with A or negotiate a way out of it, and negotiate a restart with B, when that is over.

That course of action, which may be too late, might limit your exposure.

I assume that because you are a solicitor, I have no need to explain the options open to an innocent party, confronted by a repudiatory breach, but briefly for others not so well up on the law, it is the choice of the innocent party to elect to terminate (i.e. end) the contract or to affirm the contract (i.e. to continue the contractual relationship).
Termination or affirmation by the innocent party, does not preclude the innocent party from making a claim for damages.

**Legaleagle28** · 21st May 2019, 08:34:AM

Thanks ULA and EFPOM. I am slightly confused as your advice above is completely different to the advice given above.

Firstly I signed the contract not thinking that I would have to go through the issues I faced and did not think I would leave in my probation period. Therefore hands up my mistake - lesson learnt.

In relation to the starting new job and being "dishonest" this is certainly not the case. Indeed it was my manager who breached my trust and confidentiality and then got involved in petty games and gossip. I underwent such a horrific ordeal with my health due to how I was treated. I therefore served a month and then left due to how I was treated and their conduct.

They are not innocent in this at all to be clear.

They are being vexatious and making an example of me. that is all. I am not the first to leave without proving notice which is unreasonable for the record.

**ULA** · 21st May 2019, 15:54:PM

If you had issues at work surely the course of action would have been to raise this informally with either a more senior manager/HR and if that did not resolve the issue then raise a formal grievance? Deciding not to serve your full contractual notice is not the answer to the dealing with the matter.

efpom has provided some good guidance at post #10 about being very honest with both your existing and prospective employer and see if you can negotiate leaving within 3 months and starting a bit later at the new job.

Notice during probation period