On Stress Leave and Unable to Serve Notice Period!

C1ueless

To cut a long story short, I am currently on stress leave from work due to bullying at work-investigation pending. I am currently in receipt of SSP.

I applied for a job a couple of weeks prior to taking stress leave. About two weeks into my stress leave, I was invited by the company for a job interview, which I attended. At that time, I thought my notice period was one week. I checked my contract yesterday and my notice period is in fact ONE MONTH!

This morning, I received a call from the company offering me a job. The starting date for this new job is 14th November.
My sick note expires on 7th November.

Now, I have verbally accepted the new job and I am currently waiting for my new employment contract to come through the post.

Obviously, I cannot serve the 1 month notice period required by my current employer.

*Do I wait to receive and sign the contract from the new company before giving my notice? That makes most sense to me.

*Do I give notice after my sick note has ended? Ideally, I would like to give notice as soon as I can (I'm thinking I should give notice when I sign the new employment contract), so as not to inconvenience my current employer further by causing delay to fill the position.

*What are the repercussions, monetarily? I.e., will my entire last month's "wage" be deducted? The SSP I will be receiving will not cover one month's wage. However, I am owed expenses and Time Off In Lieu (TOIL) by my employer. I assume this will be witheld and kept by my employers in order to offset losses incurred by them?

I am also owed annual leave which I have accummulated this financial year, as well as annual leave which I had accrued from the previous financial year and had carried forward. I'm guessing that is also at a loss as is my annual bonus which I would have been due in two week's time!

Technically, I suppose I am not giving notice, but just informing them.

Anyway, if anyone can help me with the above questions, I will be eternally grateful!

Many thanks in advance!

X

Jarndyce

What makes you think your employer will just accept you walking away from your job and breaching your contract? Frankly the fact that you are on sick leave is irrelevant to all of this. You need to give a month's notice and negotiate a new start date with your new employer otherwise you risk being sued for breach of contract.

Now, that is the bottom line. But of course, your old employer may be quite glad to see the back of you and agree to let you go early without serving out your notice. You have untaken leave which you could either take or be paid for. WHether you are entitled to a bonus depends on what your contract says but don't ignore that either. You need to work out what all of the above is worth and negotiate a leaving deal - if necessary via a compromise agreement which is binding on the employer.

C1ueless

Thank you Jarndyce.

I know I am breaching my contract. I thought the penalty for this is witholding my wages?

I am not currently on a high paid job, so it would not make commercial sense for them to pursue the matter by taking me to court or anything. I am not sure what other options are available to them.

Unfortunately, the new employment offer I have been made has a starting date of 14th November, which is none negotiable. And they couldn't have let me know any earlier as yesterday was the last day they stopped interviews, so I would not have been able to fulfil a one month notice period anyway, in retrospect.

The new job is paid at 4-5 times the amount of my current role, so I can't really afford to turn it down. I was bullied at work, which is why I am on stress leave and this wasn't dealt with adequately as it happened during a three week period where my Manager was on annual leave and subsequently, sick leave.

Jarndyce

C1ueless wrote: »

Thank you Jarndyce.

I know I am breaching my contract. I thought the penalty for this is witholding my wages?

Er, no - the penalty for this could be being sued for breach of contract, and for the costs involved in replacing you. Obviously if you're not working they will not pay you for that time anyway.

I am not currently on a high paid job, so it would not make commercial sense for them to pursue the matter by taking me to court or anything. I am not sure what other options are available to them.

You would not be the first person on this board to think that and to find themselves in court a few short weeks later.

Unfortunately, the new employment offer I have been made has a starting date of 14th November, which is none negotiable. And they couldn't have let me know any earlier as yesterday was the last day they stopped interviews, so I would not have been able to fulfil a one month notice period anyway, in retrospect.

That is not your current employer's problem.

The new job is paid at 4-5 times the amount of my current role, so I can't really afford to turn it down.

Understandably - that may well make it worthwhile taking the risk, I would still advise you to try and negotiate a deal where you know where you stand.

I was bullied at work, which is why I am on stress leave and this wasn't dealt with adequately as it happened during a three week period where my Manager was on annual leave and subsequently, sick leave.

Whilst this doesn't change the situation, it may be an argument for persuading them to let you go on a compromise agreement as advised.

........................

Uncertain

C1ueless wrote: »

I know I am breaching my contract. I thought the penalty for this is witholding my wages?

No, they cannot lawfully withhold wages and must either allow you to take any outstanding holiday or pay you for it after you leave.

However, as stated, they theoretically could make a claim against you for any unavoidable losses if you breach your contract. This is not common but can sometimes be used as a tit-for-tat response.

From a practical point of view would your doctor be willing to issue a certificate for the whole of the notice period? If so then your firm would be stupid not to negotiate an earlier leaving date with you.

Having a fit (i.e sick) note does not technically prevent you from working but it would be best if the doctor said that you are unfit for this particular job due to stress etc.

I would be very surprised if the employer refuses to reach a compromise as it is plainly in everybody's interest.

scottishminnie

How much annual leave and TOIL are you due?

It varies between companies however both organisations which I have worked for would reduce your notice by any outstanding leave (and I believe TOIL although it doesn't apply to me).

I resigned from Employer A where the notice period was 1 month or 4 weeks. I had 10 days of annual entitlement due which meant I was able to leave after 10 days and start with the new company (B). In effect for a 2 week period I was still employed by my old employer whilst I had also started with my new one.

Week 1 - notice given to Company A (10 days holiday due)
Week 2
Week 3 - officially on holiday from Company A but started with Company B
Week 4

It's worth looking into this as you may be able to officially give them the month's notice without having to actually work it.

Being employed by 2 companies at the same time did not cause any problems with tax or NI. I simply paid it on both salaries.

I should add at no time did I make Company A aware of my start date with Company B.

C1ueless

So, what would you advise me to do? I'm really confused now. Thanks in advance.

Jarndyce

C1ueless wrote: »

So, what would you advise me to do? I'm really confused now. Thanks in advance.

Negotiate an early leaving date using your untaken holiday etc as a bargaining tool.

Errata

C1ueless wrote: »

So, what would you advise me to do? I'm really confused now. Thanks in advance.

Did you advise your potential new employer that you were on sick leave? Have you had an offer of employment from them in writing?

TTC40

Speak with them & offer your resignation subject to waiving your notice period. This isn't an uncommon event.

You could say that as you no longer wish to work there, you would prefer a quick, clean break. Or you can tell them you have another job offer.

I don't think they will be too upset not to have to pay you whilst on sick for a month.

You would still be entitled to your accrued annual leave.

Assuming that they are happy for you to go (this isn't a dig at you, but often when complaints are made it can be the case), I would expect them to happily accept this.

DVardysShadow

Jarndyce wrote: »

I am not currently on a high paid job, so it would not make commercial sense for them to pursue the matter by taking me to court or anything. I am not sure what other options are available to them.

You would not be the first person on this board to think that and to find themselves in court a few short weeks later.

Not the first, probably the second. Although the first case has not yet gone into a courtroom as far as I am aware.

The truth of the matter is yes, the employer may sue you for the costs of hiring a replacement, but their claim might only be upheld for extra costs over and above the costs of employing you. And it is one thing to sue, another to win.

OP, don't let this deter you too strongly - there is enough in this case that you could probably claim for constructive dismissal [yes, I know] which would mean the the gain from pursuing you could be so trivial that it is just not worth the effort, given the dirt you could spill in the constructive dismissal case.