Getting out of a 3 month notice period...

Discussion in 'Legal' started by BDR, Feb 8, 2008.

  1. BDR

    BDR UKBF Newcomer Free Member

    Posts: 4 Likes: 0
    Hi all, I'm currently working in a company that I've been working for 2 years, and recent events have led me to becoming desperate to get out.
    To fill you in a little, I was part of a management buy-out that fell through and as a result me and the other managers are looking at setting up our own company.

    I have already got the chance of work from a potential client, if I can start work for them in a few weeks.
    Problem - my contract states I have to work three months notice.
    Possible solution - I've never signed it, and have both my copy and the company's copy at home, i.e. there's nothing in my file at work as I've never returned the contract and never been asked for it.

    I actually seeked legal advice recently, including having a meeting with a solicitor who specialised in employment law, (which cost me a fair bob!)

    Now, he said that I am able to hand in my resignation and give them just a week's notice because having not signed anything I am not bound to any terms.

    I asked him directly about the view that by coming in everyday and taking a salary I was agreeing to my terms, but he said that he would just defend me by saying "I've never agreed to any terms, where's your proof? I'm not bound to anything".

    This guy is a partner in one of the biggest law firms in the country, and I trust his opinion greatly, but yet I still want a second opinion, as everywhere I turn people tell me that my employer can say that I am agreeing to it by just being here and having never disputed it.

    Can anyone help me?

    Regards
    BRD
    Posted: Feb 8, 2008 By: BDR Member since: Feb 8, 2008
    #1
  2. Antonia @limeone.com

    Antonia @limeone.com UKBF Newcomer Free Member

    Posts: 1,765 Likes: 141
    The way I see it is if your solicitor has advised you down this course and you paid him or her for the advice if you do get pursued by your employer ( which is a real long shot even if you HAD signed the contract) then you would claim any losses against your solicitor anyway.
    Posted: Feb 8, 2008 By: Antonia @limeone.com Member since: Jan 28, 2006
    #2
  3. Jill

    Jill UKBF Newcomer Free Member

    Posts: 1 Likes: 0
    Thee months notice does seem excessive. Can it be justified? Will you be difficult to replace - are you the only employee doing your job? Can the employer find a substitute while he recruits someone else. Will your departure without notice be expensive for him causing him to sue for breach of contract?

    If three months is a necessary period of notice because of the nature of your work and the time it will take the employer to replace you, it may be implied in your contract that you have agreed to three months notice.

    In employment law you are only required to give reasonable notice (but don't forget your contractual notice). If your job is not indespensible, why not try and negotiate a reasonable notice period with your employer? It would be better than leaving without notice which is what you are suggesting. Alternatively you could get yourself fired if you have another job to go and you are not concerned about any consequences in terms of references and Job Seekers Allowance. Your employer would not sue for breach of contract if he fired you. (Well - probably not - depends on the misconduct and how you go about it!)

    If you leave without notice, you will still be in difficulty in respect of references and Job Seekers Allowance - if these are relevant - and the employer may sue for breach of contract.
    Posted: Feb 8, 2008 By: Jill Member since: Feb 3, 2004
    #3
  4. lee jones

    lee jones UKBF Newcomer Free Member

    Posts: 44 Likes: 1
    the advice you received was quite correct. Any claim they may make ( and this would cost them) would not stand up in court..
    Posted: Feb 8, 2008 By: lee jones Member since: Aug 20, 2007
    #4
  5. INDIZINE

    INDIZINE Banned

    Posts: 2,321 Likes: 169
    You do not have to sign a contract of employment to be bound by it - by either party.

    The fact it was issued by the employer to yourself is what matters.

    3 months notice is common for senior management, but isnt often followed through, more of a contingency for worse case scenario. However, they can expect 3 months notice if they so wish and could puruse you if you left earlier without their consent. Only you will know how far they might take it.

    There are legal minimums but that is only applied where no notice period is set within your contract of employment.

    Creating a situation to get yourself fired is a terrible suggestion so please do not follow that course of action. Do only what is in your best, ethical and legal interest. Life has a habit of backfiring!

    The best way is, if you possibly can, talk to your line manager and explain that it is not working out for you, get them on side, and they will inevitably submit because you are being open and honest, calm and professional. Go in there with threats, get their backs up, and ommit them form what you are planning, and they will likely react the same behaviour and attitude. Be as humbling, nice and egnuine as you can and it is pschologically unlikely they will work against you. Box clever on this one.
    Posted: Feb 8, 2008 By: INDIZINE Member since: Oct 24, 2007
    #5
  6. BDR

    BDR UKBF Newcomer Free Member

    Posts: 4 Likes: 0
    thanks guys.

    Firstly, Jill, thank you for your comments, but you talk as if I am leaving without notice, when in fact I am talking about giving the legal minimum - 1 week. This is what I have been informed I can legally do. I don't want to literally walk out without notice.

    Indizine - thank you as well, and if I had a line manager I may consider it, unfortunately the next step up from myself is the directors, whom are my employers :-(

    In answer to the questions about whether I can be replaced easily, the simple answer is no, but equally I don't think the company will fall to the ground without me.

    I originally wanted to do as Jill suggests and negotiate a term, i.e. one month, but the problem I have is I want to be out of my position so I can trade in my new company for my potential client.

    Lee Jones - thank you, I tend to think that they couldn't get anything to stick either but it seems such a grey area, Indizine seems to suggest that the fact they gave me a contract (even though they have 'lost' it), is enough for them.

    I think this one may fall down to what Antonia said in the first reply on here - that I am going on the advice of a paid solicitor and if he turns out to be completely wrong then take action against him. Though again, I'd have to prove he gave that advice!

    I'm so lost on this to be honest. But it does seem there's no 1 legal rule, and that it seems to differ from case to case. I don't think me leaving is an issue for the company, in fact, I think they'll welcome the save of money, but it's the week's notice they won't like!

    Thanks for all your help.
    Posted: Feb 8, 2008 By: BDR Member since: Feb 8, 2008
    #6
  7. INDIZINE

    INDIZINE Banned

    Posts: 2,321 Likes: 169
    Ther are statutory legal notice periods. Check out ACAS and CIPD websites for lots of useful factual information. You might have to dig around for it but at least its correct info.
    Posted: Feb 8, 2008 By: INDIZINE Member since: Oct 24, 2007
    #7
  8. coxadmin

    coxadmin UKBF Newcomer Free Member

    Posts: 2,117 Likes: 84
    I've worked in places where I've given the required notice and then been released immediately. Are they likely to offer a similar solution?
    Posted: Feb 8, 2008 By: coxadmin Member since: Nov 5, 2004
    #8
  9. BDR

    BDR UKBF Newcomer Free Member

    Posts: 4 Likes: 0
    coxadmin - yes possibly, but I can't be on any garden leave, as then I can't trade in my new business. I need to be out properly. Hence the only giving them the week. Otherwise I would try to negotiate a period of notice perhaps half in the office and half out on GL, but I need out to start working (in what is likely to be competitive to them).

    Indizine - Thanks for the sites, I will check them out. My solicitor advised me that due to only having worked here 2 years I can get away with giving just a week. But I will look at those sites, thanks again.
    Posted: Feb 8, 2008 By: BDR Member since: Feb 8, 2008
    #9
  10. Antonia @limeone.com

    Antonia @limeone.com UKBF Newcomer Free Member

    Posts: 1,765 Likes: 141
    If he has been paid, get him to confirm in writing the contents of that advice if you are concerned about it. There is no single rule in law, its what can be proven and in most cases employers even with contracts do not hold or want to hold onto employees who want to leave, it is in no one's best interests.
    Posted: Feb 8, 2008 By: Antonia @limeone.com Member since: Jan 28, 2006
    #10
  11. BDR

    BDR UKBF Newcomer Free Member

    Posts: 4 Likes: 0
    thanks Antonia, and yes, I think he is writing our meeting up, and I will make sure he does.
    Posted: Feb 8, 2008 By: BDR Member since: Feb 8, 2008
    #11
  12. yorkshirejames

    yorkshirejames UKBF Ace Free Member

    Posts: 2,560 Likes: 351
    Two questions/thoughts - is there any possible restrictive covenant that your current employer may want to enforce? Is the new company going to be in direct competition?

    Whilst garden leave (literally speaking) is staying at home weeding the garden, in reality noone can stop you doing anything, even if they see you each morning leaving home and getting the train into town then walking into an office.

    I'm thinking of one recent scenario that I have advised upon in particular, yet the employee is rarely concerned what the worker is doing. However this was the sort of industry where if someone gives their notice in, they are immediately marched out of the office.
    Posted: Feb 8, 2008 By: yorkshirejames Member since: Mar 2, 2006
    #12