Fairly Urgent Advice Needed

[CornishPasty]

Good afternoon, folks.

Looking for some advice on behalf of a few colleagues and myself.

We all work for a company based in Newcastle and the treatment there is pretty terrible. The company has an enormous turnover of staff - I mean, astonishingly high.

Anyway, a few of us have now been offered jobs with another company in a different sector and we are keen to leave.

The current employer is looking for three months notice from us (it's in our contracts) after just about six months employment with them. In order to secure the other jobs, we cannot afford to offer this length of notice. Where might we stand if we walked early? None of us want to leave the current company in the poop, but giving three months is impossible if we want to secure something else.

We recently had a letter through from HMRC advising us that for a period of about six months at the start of our employment the employer was paying us LESS than National Minimum Wage. This came about after one of our former colleagues wrote to HMRC complaining that he felt we weren't being paid appropriately. Seems he was right.

We all wonder if we can use this fact to tell the employer that the contract has already been breached - as they say in our contracts to always pay us atleast NMW.

Additionally, and I'm not sure if this is relevant, the company went through a name change/rebrand a few months ago. Our contracts still refer to the old 'version' of the company that no longer exists.... Does this mean the contract could be deemed invalid?

Anyone have any thoughts on this at all?

Cheers

[Harmonica]

Re: Fairly Urgent Advice Needed

If you leave without seeing through your notice period your employer can technically seek damages against you for breach of contract. This very rarely happens as it is usually more trouble than it‘s worth.

If your employer has been paying you less than minimum wage then that would also be a breach of contract although the onus would have been on you to notice that you were being underpaid and inform your employer.

To just walk out on your job without first giving your employer the opportunity to put your underpayments right might not be viewed as reasonable by an employment tribunal.

You say that the treatment you receive is terrible. If you want an excuse to just up and leave then combine your underpayments with the next instance of bad treatment and just walk.

[Vircoa]

Re: Fairly Urgent Advice Needed

Your current employer wouldn't be happy if you walk, and wouldn't suggest doing that if you base your notice period on 1 week for each completed year of service then this is sticking to the guidelines of ACAS. Also if they are treating there staff badly and not paying you fairly then they don't sound like they would consider taking action against you!

I hooe this helps?

good luck with the new job

:-)

[CornishPasty]

Re: Fairly Urgent Advice Needed

If you leave without seeing through your notice period your employer can technically seek damages against you for breach of contract. This very rarely happens as it is usually more trouble than it‘s worth.

If your employer has been paying you less than minimum wage then that would also be a breach of contract although the onus would have been on you to notice that you were being underpaid and inform your employer.

The minimum wage thing was first raised by a former colleague of mine back in September and we have a letter from HMRC confirming that they would be looking into the situation further. I don't know what, if anything, has happened since then. We CERTAINLY haven't seen any back-pay.

I've just given ACAS a quick call and they've advised much the same as you have.

Have done some digging and it seems there have been quite a few people to have left the company in the last year or so without giving full two months notice. Nothing appears to have happened to them, but I assume this cannot be considered an indication that no action will be taken against me. If the company does, however, can I argue that I'm being unfairly treated compared to those who left before me?

They have also made arrangements to allow others to leave before their notice period was up, for whatever reason. Again, could I argue that it would be unfair to treat people differently and not make the same allowances for myself and my other colleagues who wish to leave soon?

[FlamingParrot]

Re: Fairly Urgent Advice Needed

Have done some digging and it seems there have been quite a few people to have left the company in the last year or so without giving full two months notice. Nothing appears to have happened to them, but I assume this cannot be considered an indication that no action will be taken against me. If the company does, however, can I argue that I'm being unfairly treated compared to those who left before me?

It's very rare to see a company actually take action against a former employee for not giving enough notice. In fact, I know someone who signed a contract (not permanent but for a few months) and was due to start, then changed his mind and didn't take the job. No action was taken.

Understandably, this sort of thing, just like walking out, would upset people but this is more likely to affect any references given than to prompt legal action.

They have also made arrangements to allow others to leave before their notice period was up, for whatever reason. Again, could I argue that it would be unfair to treat people differently and not make the same allowances for myself and my other colleagues who wish to leave soon?

This is not uncommon, and is something you may wish to consider. Employers are often happy to wave notice periods since it is assumed that people who are leaving won't be performing at their best. In some cases, people are put on garden leave to avoid having them on the premises during their notice period for various reasons.

[bluebottle]

Re: Fairly Urgent Advice Needed

In view of the fact that HMRC has written to you about being underpaid, it is an indication that your current employer is under investigation and to leave now would not be a good idea. If underpaying is going on, it is not unusual for irregularities with PAYE, National Insurance, VAT, etc., to be going on also.

My advice is to stay put for the timebeing. When HMRC pay an employer a visit for underpaying - and they will pay your current employer a visit - they will turn up without warning. If you leave now and HMRC turn up, say, next week, it could look a bit suspicious and, as others have said, it could land you with legal problems.

[Mr $quandaŁot]

Re: Fairly Urgent Advice Needed

Excellent advice!

Something that most of us wouldn't even think about, especially on non-managerial roles.

[steampowered]

Re: Fairly Urgent Advice Needed

Personally, I would just give as much notice as possible and then leave, and then pursue them for back-pay due to underpayment of the NMW. Its not risk-free but if it means getting the other job probably worth doing.

With the HMRC investigation the company will have other things to worry about.

[CornishPasty]

Re: Fairly Urgent Advice Needed

In view of the fact that HMRC has written to you about being underpaid, it is an indication that your current employer is under investigation and to leave now would not be a good idea. If underpaying is going on, it is not unusual for irregularities with PAYE, National Insurance, VAT, etc., to be going on also.

My advice is to stay put for the timebeing. When HMRC pay an employer a visit for underpaying - and they will pay your current employer a visit - they will turn up without warning. If you leave now and HMRC turn up, say, next week, it could look a bit suspicious and, as others have said, it could land you with legal problems.

They didn't actually write to me personally. They wrote to a colleague of mine - back in September. So I guess I could plead ignorance. I most certainly have nothing to hide in that respect.

Thanks for the advice. Worth considering.

[bluebottle]

Re: Fairly Urgent Advice Needed

They didn't actually write to me personally. They wrote to a colleague of mine - back in September. So I guess I could plead ignorance. I most certainly have nothing to hide in that respect.

Thanks for the advice. Worth considering.

The reason HMRC investigate employers who underpay is because it affects an employee's National Insurance contributions record which, in turn, can impact on their entitlement to benefits and, ultimately, their State Old Age Pension. Not only this, where underpaying is going on, there are, usually, irregularities with VAT and other tax-related matters going on also.

[CornishPasty]

Re: Fairly Urgent Advice Needed

The reason HMRC investigate employers who underpay is because it affects an employee's National Insurance contributions record which, in turn, can impact on their entitlement to benefits and, ultimately, their State Old Age Pension. Not only this, where underpaying is going on, there are, usually, irregularities with VAT and other tax-related matters going on also.

Nothing would surprise me with this shower