Shortening a long notice period

[aep123]

I require advice on working my long notice period when I was verbally told that it would be shortened but this decision was later rescinded.

I have worked for a large organisation in a specialist but non-managerial role for upwards of ten years. I am full-time, salaried and work unspecified hours (not a zero hours contract) at the "exigencies of the service", in practise working anywhere between 35 and 60 hours per week depending upon the time of year.

Until recently there has been five colleagues who perform similar duties however due to retirement, long-term illness and resignations we have been quickly reduced to a team of two (my co-worker being part-time). Due to the nature of the work and information that we handle contractors are unable to fill the role. We have had exceptional difficulty recruiting into the vacant positions and currently the company is operating a general recruitment freeze whilst it considers its financial strategy and is not prepared to make an exception in our case.

The present situation has made obtaining leave extremely difficult due to lack of cover and I have been told to anticipate working additional hours and from my point of view there is no end in sight. Rather than stay in an uncertain position and fight for the right to work reasonable hours I have decided to seek alternative employment and have accepted a job elsewhere.

My problem comes about because my employment contract states that my notice period is four-months however in discussing this with an executive was informed (verbally) that I should not expect the company to demand more than six weeks notice. However upon handing in my resignation and after considering the specifics of my circumstances they have now decided to hold me to the full four months. Negotiating this period was unsuccessful and I have basically been told that in addition to my duties I would be responsible for training any replacement member of staff that they might be able to recruit (unlikely based on recent experience) but in relation to this extra demand I have been warned that the organisation "does not accept partial performance".

I am obviously very keen to move on having informed my prospective new employer of my expected six-weeks notice period and certainly do not want to spend the remainder of four months working under this cloud.

In practise what are the likely consequence of providing them with an absolute finishing date (six weeks notice) and then walking away? I presume that this is purely a civil matter in which case are there any prominent examples of employers successfully suing individuals for consequential damages and are there limitations that come into effect?

[mariefab]

Re: Shortening a long notice period

Is the new employer prepared to wait 4 months for you?

[AntelopeBoy]

Re: Shortening a long notice period

Hi,

The worst case scenario would be that the employer you are planning to leave successfully claims against you for breach of contract (on the basis you have failed to meet the contracted notice period), and is allowed to claim "reasonable expenses" caused by your breach of contract. Unfortunately, as you mention being in a highly specialised role this could realistically include any costs the former employer may incur by, for example, having to bring in a contractor to perform your role for the duration of your notice you failed to work.

Unfortunately it would appear as though you have been tied into an incredibly excessive notice period; in my (close to ten years) recruitment experience I have only ever seen such a notice period for very high (Director, Senior Management etc.) level positions. even in this case, 12 weeks is the norm. For a non-management position 4-6 weeks is the standard.

My advice would be to advise the company of your intention to leave and that you agree to work a six week notice period as previously agreed verbally. Should they refuse this point out that a notice period of over six weeks would be viewed as excessive, and could, in a legal sense, be seen as an unfair contract clause given the widely recognised 4-6 week standard.

Hope this helps, happy to divulge further if needs be :-)

[mariefab]

Re: Shortening a long notice period

It isn't commmon for employers to go to the trouble of sueing employees for this sort of breach, or for them to sue the new employer for inducing the breach.
But, if you were to breach your contract in this way they could apply for an injunction but probably only get compensation.
If you don't have a contractual clause specifying the amount of liquidated damages liable in the case of such a breach the employer would have to provide evidence of their consequential losses and take reasonable steps to mitigate such losses.
As they didn't feel the need to replace 3 of the 5 employees performing the role who recently left I would think that they struggle to demonstrate a great financial loss.

Have you signed an opt-out of the maximum 48 hour working week.