Resigning and contract issues

SarEl

jiffk wrote: »

ok just an update on this my boss seems fairly friendly about it but the accounts personnell are saying standard contract is a month so i would breach.

So much so that they have withheld this months pay already which should have gone through today but didnt.

Is this a breach of employee/employer trust?

Do i have grounds to declare any contract they think they have with me null and void becuase of this?

Thanks again

Ah. Possibly. Possibly not. I know, that's a lawyers answer, but I am afraid there isn't a better one. Technically yes, it is a breach of contract. But, and this is where is gets complex, it isn't necessarily sufficient breach to nullify the contract. I assume that you get paid so much in advance and so much in arrears - not all in arrears? If this is the case, they have a defence. You have already indicated that you intend to leave, quite possibly before the end of the pay period. On which basis they can stop your payment in order to recalculate it based on when your notice expires. It's a bit of a cleft stick, because this is a fair enough reason, and their argument will be that if you had given the contractual notice, they would have had all this sorted out in the month before you left, but since you also decided to breach your contract by only giving a weeks notice then they haven't had time to work out what you are owed.

If your manager has agreed to the reduced notice (I assume that's what you are saying) then that means you can leave with a clear conscience - but your pay may follow you, rather than be due today.

Uncertain

Horace wrote: »

No you cannot declare the contract null and void - if you havent been paid then speak to your boss again..write a letter.

By working there you have accepted their terms and conditions of employment (it doesnt matter that you havent got a signed copy of your contract because by turning up each day and working means that you have accepted their terms). If you are normally weekly paid then you could give a week's notice, however, if you are monthly paid then depending on the terms you either give a month's notice (some places will ask for 3 months' notice). If you leave without fulfilling the terms of your notice then you are in breach. Why not speak to the prospective employer and see if they will hold the job open for you, it is unreasonable of them to ask you to give a week's notice.

This is true but works both ways.

The firm have no right to withhold wages. Two wrongs don't make a right and, in any case, the OP hasn't even left yet.

As has been pointed out the firm MAY be able to sue the OP for any losses if he fails to honour his contract. However they have no right whatsoever to hold him to ransom.

Premier_2

jiffk wrote: »

ok just an update on this my boss seems fairly friendly about it but the accounts personnell are saying standard contract is a month so i would breach.

So much so that they have withheld this months pay already which should have gone through today but didnt.

Is this a breach of employee/employer trust?

Do i have grounds to declare any contract they think they have with me null and void becuase of this?

Thanks again

To receive pay on the agreed date for work carried out is a fundamental of employment contracts.

If you haven't received the money you were expecting, it could be considered that the employer has already breached the contract and so it is now considered over.

(Obviously, this needs to be taken in context, but you've not suggested it is simply an error on the part of the employer e.g. no one got paid today by the employer due to a payroll/bank error, but implied it was deliberately withheld due to your plans)

Looks like the employer played right into your hands. Go and start your new job & enjoy.

If salary for work carried out (plus any accrued but untaken holiday) is not paid, sue them. Whether you want to push for more than that is up to you.

jiffk

im paid in arrears

I havnt negotiated a reduced notice peroid, from the way my boss has been speaking to me he's making it sound like the its the HR dept that are insting that im breaking contract but when i speak to the HR dept they say you'll have to negotiate out of your contract with your manager.

Its not simply an accounting error as i email our HR about it and they replied saying speak to your boss about your wages.

SarEl

jiffk wrote: »

im paid in arrears

I havnt negotiated a reduced notice peroid, from the way my boss has been speaking to me he's making it sound like the its the HR dept that are insting that im breaking contract but when i speak to the HR dept they say you'll have to negotiate out of your contract with your manager.

Its not simply an accounting error as i email our HR about it and they replied saying speak to your boss about your wages.

OK. Provided that you are positive that the whole of your pay is paid in arrears (bearing in mind you didn't know what the notice period was - please be sure!) then this is both a breach of contract and an unlawful deduction of wages. Provided you are sure! If you are not - do not do what I am about to tell you!

You are now able to repudiate your contract provided that you do so immediately. That means that you must not return to work (except possibly to deliver a letter). You must write to your employer saying that in rescinding your pay for this month they have committed a breach of contract. You therefore consider yourself no longer bound by the contract as a result of their actions. If they do not pay you the full outstanding amount of salary, plus notice pay, plus holiday pay, within XX days (I would ususally say 28 - what you say is up to you, but it must be reasonable), plus any costs incurred by you (which you will have to evidence) as a result of their non-payment of monies owed on the due date, you will begin legal action, without further notice, for unlawful deduction of wages and constructive unfair dismissal.

The last bit is actually a bluff - your chances of winning unfair dismissal are around zero, but they don't know that yet. You might make sure the latter arrives after 10 am, and start it with, "having taken legal advice, I am advised to inform you..." (the reason for making sure it arrives slightly later being to give the impression you actually have taken legal advice!)..

But really - do be positive about the whole of the wage being paid in arrears, because if it isn't you have shot your arrow!

jiffk

thanks, we get paid on the 24th-26th of each month for the preceeding month, but i think were it gets complicated is a joined in the first week so in theory im being paid for 3 weeks work and 1 weeks in advance (is that right?)

So if thats the case then im guessing i wouldnt be able to do exactly what you just stated.

Id like to add im not out to screw them over by demainding they pay holiday, and notice without me working it.

Does it make any difference when the refused to pay and when i were to approach the broken trust?

I.e. by monday morning at 10 i would have started my new job and not turned up at the old one so in theory breached contract then

Judas

I would be very sure of this.

Most employers tend to pay around the end of the month for the calender month so mostly in arrears but a week in advance.

If this is the case they will probably argue they withheld the payment until they where sure you would not breach the notice and misappropiate the last weeks payment.

If you genuinely are paid in arrears and have nothing outstanding to them then fair enough they clearly have breached the contract. I would walk as advised and send a letter asking for all monies due. I would stop short at asking for the full notice period given you had no intention of working it. They probably in my view will counter that they cancelled the payment so they could ensure it was correct and would contain all amounts due to you and that it would arrive very shortly after and therefore was not fundamental.

SarEl

jiffk wrote: »

thanks, we get paid on the 24th-26th of each month for the preceeding month, but i think were it gets complicated is a joined in the first week so in theory im being paid for 3 weeks work and 1 weeks in advance (is that right?)

So if thats the case then im guessing i wouldnt be able to do exactly what you just stated.

Id like to add im not out to screw them over by demainding they pay holiday, and notice without me working it.

Does it make any difference when the refused to pay and when i were to approach the broken trust?

I.e. by monday morning at 10 i would have started my new job and not turned up at the old one so in theory breached contract then

I forgot it was Friday! I really have to get a life!

Do not do anything I just told you - you have just confirmed to me that you have no idea how your pay is calculated! Your start date is not relevant, nor is the day of the month that you get paid on. What is relevant is the pay period, and you obviously don't know what it is.

Let me explain. Lots of my clients work in the public sector and huge swathes of them are paid on 15th of the month, every month. They are paid 1/12th of their annual wage, which broadly represents 2 weeks in arrears and two in advance (given that calandar months are not exactly the same length as 4 weeks). If they start on 1st of the month then on the 15th they will get a full months wages. If they start on 8th, they still get paid on 15th - but they get a proportion of the wage which represents the period from 8th to the end of the month. Then the next month they will get 1/12th of their wages on 15th for the whole of that month.

So when you started the job doesn't matter - it's what the pay period used for calculation is. I suspect, and you probably don't recall now, that the pay period is not all in arrears. In which case the situation reverts to my previous advice - stopping a wage going through when that wage may not be correct because the employee has left during the period is not a brecah of contract - it is a recall to recalculate what is owed.

I think it might be best to call them on Monday and clarify exactly what is going on.

jiffk

ok thanks that makes perfect sense.

So would it be illegal for them to withhold pay for hours i have worked and expenses i've have already accumulated for work idenfinately and they are only doing this to,as you said, caluclate what im owed or could they use this to cover the cost of a replacement contract etc to cover my abscence for the peroid of notice they think i should be serving

SarEl

jiffk wrote: »

ok thanks that makes perfect sense.

So would it be illegal for them to withhold pay for hours i have worked and expenses i've have already accumulated for work idenfinately and they are only doing this to,as you said, caluclate what im owed or could they use this to cover the cost of a replacement contract etc to cover my abscence for the peroid of notice they think i should be serving

Yes and no. Yes you have got it. No they cannot withhold any wages - if they want to sue you they must do so. That is why few employers do it.