3 months notice period. Is it enforceable?

[Bod100]

Hello.

I hope someone here can clarify for me?

I joined a small family business about 7 months ago. As part of the job negotiations, I agreed to a 3 month notice period to end my employment being included as part of my Contract of Employment. The intention, as it was explained to me, was that the Managing Director (founder of the business) was looking to set up a new Management Team, to allow him to withdraw from the day to day activities. The rationale for the 3 month notice being this was a new senior role, etc. My role is part of this new Management team.

However, since actually working there, I’ve discovered that the vast majority of other employees, be it office staff or other, don’t even have a contract of employment and the rule of thumb is that only a weeks notice is given. The main reason I have a contract, is because I asked for one!

We are all weekly paid - both salaried and hourly workers.

Other members of this Management team include the MD’s son, who I very much doubt has any contact, and a new starter (started after me) that I know has no contract and is therefore working to a 1 week notice period. So, I’m pretty sure I’m the only employee in the business on a 3 months contractual notice period.

Based on all this, how enforceable is my 3 months notice period to end my employment should I resign? I don’t consider my role that senior, or difficult to fill.

I read about the Employment Act notice periods, but not sure how this works as I’ve signed a Contract agreeing to 3 months? (Had I have known the rest of the business operated without contracts/to a weeks notice I would negotiated a lower notice period before signing).

To me, it it doesn’t seem fair, reasonable or consistent to hold me to 3 months, should I wish to leave? Does my length of service/payment frequency make any difference?

Should I resign, I would like to offer 1 months notice, which is still 4 times more than the usual week given by others...

Any guidance gratefully received.

Thank you

Bod.

[ULA]

Contractually and by the rule of that contract if you have agreed to a three month contract then that is what you have to provide.

However if you wish to leave before the end of your contractual notice, there are realistically not many remedies available to your employer. You cannot be forced to work as a matter of law, even though you may be in breach of contract. In certain circumstances, an employer may be able to obtain an injunction to stop you from working at a new employer during your notice period. Your old employer would have to show that your new employer is a direct competitor, and that there is a legitimate business interest to protect- this is not always an easy task. It is usually only worth an employer to consider bringing any such claims against senior executives.

You may also be sued by an employer for the additional costs arising from the breach of contract, i.e. any higher cost of replacement staff for the balance of your notice period. In the most serious cases, a claim could further be made for lost business arising from your breach. Again, such claims are very rare and likely to be brought against senior personnel only.

If you give less notice than you are contractually obliged to give, your employer may try to withhold pay due to you for the time that you have already worked because of this incorrect notice. Employers are generally not entitled to make such a deduction unless this is provided for in your contract of employment.

Given all of the above I would suggest that if/when you are in a position to resign you negotiate a shorter period i.e. the one month you would wish to give and part of your reasoning can be the inconsistency with other senior staff member and you in regard to notice period.

[Bod100]

Thanks for your reply. Just been doing a little searching on this website and found a similar query from 2013. Below is the reply given by teaboy2 in October 2013. The advice given does seem to differ slightly, in that this advice is referring to the Employment rights act 1996 and only a weeks notice for each year worked is required by an employee irrespective of any contractual terms...

Am I misunderstanding?

Thank you


29th October 2013, 15:24:PM
Re: Employee contract - 3 months notice

The Employment rights act 1996 under section 86 (2) states the employee must give notice of not less than one week. Only an employer is required to give notice of 3 months if the employee has worked for them for 12 years. But for employees giving notice its simply not less than one weeks notice. But to be seen as fair and reasonable, i would give 3 weeks notice for the 3 years you have been there.
Last edited by teaboy2; 29th October 2013, 15:59:PM. Reason: added word "not" in first sentence.

[ULA]

The issue is that in your situatio your contract is not mute on the notice period requirement. Otherwise the one week's notice could apply.

[Bod100]

Hi again, thought it easier to post below the original full query from 2013. I would post a link to it, but don’t know how to! As you can see, this contract also stipulates giving the company 3 months notice, the same as mine...

The direct reply to this is what I posted earlier from teaboy2...

Why would my case be any different?

Thank you



Employee contract - 3 months notice

29th October 2013, 11:24:AM
I am a permanent member of staff who has been employed at my current job since 4th January 2011.
I began initially on a 3 month contract and went on to a permanent contract on 1st April 2011 but now wish to leave the organisation.

However my contract states:

“ If you wish to terminate your employment, you should give the company 3 months notice in writing.
If the company wants to terminate your employment, you are entitled to one months notice at anytime before you have completed two years employment.
When you complete 2 years employment you will be entitled to be given one weeks notice of termination for each year of your employment, up to a maximum of 12 weeks after completing twelve years service.”

In my line of work no potential job is going to wait 3 months for me and I do not want to risk resigning without finding a new job.
I can give 1 months notice as a maximum. I am also not senior.
The company has been known in the past to delay handover and employing new staff so that the current employee is delayed in leaving the role.

Please can you advise

Thanks so much

[ULA]

The information posted by Teaboy2 is correct if your contract is mute on notice period however yours is not it specifically states 3 months so my guidance at #2 is correct for your circumstances.

I appreciate Teaboy2 gave this guidance to someone who had to give 3 months notice but it was incorrect given the situation.

[Bod100]

Thanks for the clarity.

For a little background info, to put up my sleeve, to help with my negotiations for a shorter notice period, is there anything in employment law that specifies that employees within the same business should be treated fairly and equally in regard to terms and conditions in their employment contracts, whether generally, or specifically around notice periods?

Given my situation above, are you aware of any other information/guidance that would help support my request for a shorter notice period?

Any guidance gratefully received...

Thank you.

Bod

[ULA]

It is normal for senior managers to be put on longer notice periods. However if there are other members of staff who are deemed to be senior on a lesser notice period then you could argue that there is inconsistency of terms for this level of management that adversely affect you. Indeed it also seems that you can argue that although they deem your position to be senior it is in fact not and therefore does not warrant the level of notice.

Another thought, would your job be easily replaceable or do you have specific skills that are difficult to find in the recruitment market? If the former then this adds to the argument that the position it not actually a senior one and therefore does not require an extended notice period above the normal one month.

Hope this helps.

[Bod100]

Thanks. Some good points there...