Notice Periods

Melkor100

Hello, my wife is in a current situation whereby the notice period is in dispute. She started her current position on a fixed term contract of 4 months, which states "Your employment is for a maximum of four months following your start date and shall continue, subject to the remaining terms of this agreement, until it terminates without need for notice unless previously terminated by the Company in accodance with..." two clause references which it states. The contract also includes info on the probationary period, stating "The first four months of your employment will be probationary and the Company reserves the right to terminate your employment either during or at the end of that period on one week's written notice. The Company at its discretion may extend this if a longer period is required to evaluate your performance". The contract also states under its Termination section "Your employment with the Company can be terminated by either party giving to the other not less than one months' notice in writing"

So the intial four months passed, without a mention or action of review of probation, no one at the Company informed informally or formally that my wife had passed the probationary period. They did however, want her to extend her fixed term contract for another four months by letter which states "I am writing to confirm that your fixed term contract that was due to expire on 7th March 2017 has been extended and will now terminate on Friday 7th July 2017. All other terms and conditions remain unchanged as per your contract of employment, including your notice period and your continuous service".

The company had lost its account with its client on which my wife is working on and is in the process of seeing out the remaining time left on their contract. Many people associated with account have sought employment opportunities elsewhere as well as my wife, who has been offered a job as a result. Which brings me to my question of what notice period is correct? The Company says its one months' as she has passed her porbationary period and my wife believes its only a week as they hasn't been any due process on her probationary period only an extension of her fixed term contract. My wife has offered a two weeks notice period to help out with any transitional period but they have been insistant, even stated they will refuse to pay her her remaining holiday days. Who has the legal ground here?

Thanks

Undervalued

Melkor100 wrote: »

Hello, my wife is in a current situation whereby the notice period is in dispute. She started her current position on a fixed term contract of 4 months, which states "Your employment is for a maximum of four months following your start date and shall continue, subject to the remaining terms of this agreement, until it terminates without need for notice unless previously terminated by the Company in accodance with..." two clause references which it states. The contract also includes info on the probationary period, stating "The first four months of your employment will be probationary and the Company reserves the right to terminate your employment either during or at the end of that period on one week's written notice. The Company at its discretion may extend this if a longer period is required to evaluate your performance". The contract also states under its Termination section "Your employment with the Company can be terminated by either party giving to the other not less than one months' notice in writing"

So the intial four months passed, without a mention or action of review of probation, no one at the Company informed informally or formally that my wife had passed the probationary period. They did however, want her to extend her fixed term contract for another four months by letter which states "I am writing to confirm that your fixed term contract that was due to expire on 7th March 2017 has been extended and will now terminate on Friday 7th July 2017. All other terms and conditions remain unchanged as per your contract of employment, including your notice period and your continuous service".

The company had lost its account with its client on which my wife is working on and is in the process of seeing out the remaining time left on their contract. Many people associated with account have sought employment opportunities elsewhere as well as my wife, who has been offered a job as a result. Which brings me to my question of what notice period is correct? The Company says its one months' as she has passed her porbationary period and my wife believes its only a week as they hasn't been any due process on her probationary period only an extension of her fixed term contract. My wife has offered a two weeks notice period to help out with any transitional period but they have been insistant, even stated they will refuse to pay her her remaining holiday days. Who has the legal ground here?

Thanks

Generally you are automatically considered to have passed probation unless you have been told otherwise. Therefore the company would be on fairly strong ground arguing that the longer notice period applies.

If she fails to give the correct notice they cannot legally withhold accrued holiday or anything else that is owing. However, that doesn't mean they won't. What they can do, although it is fairly rare, is make a claim against her for breach of contract for any unavoidable losses they incur. More likely, in the real world, is a standoff along the lines of "you sue us and we will sue you"!

getmore4less

The notice by employee has always been 1 month unless they chose to not renew at the end of the fixed term.

only the employer could dismiss on 1 weeks notice.

tea_lover

One month's notice. Extending her contract could be taken as evidence that her probationary period was over. You don't need anything in writing - it's generally taken that the probation is passed unless you hear otherwise.

getmore4less

probation is not relevant for the employee notice.

edit : cutting out all the not relevant stuff from the post.

........
"Your employment is for a maximum of four months following your start date and shall continue, subject to the remaining terms of this agreement, until it terminates without need for notice unless previously terminated by the Company in accodance with..." two clause references which it states.

The contract also includes info on the probationary period, stating "The first four months of your employment will be probationary and the Company reserves the right to terminate your employment either during or at the end of that period on one week's written notice........

he contract also states under its Termination section "Your employment with the Company can be terminated by either party giving to the other not less than one months' notice in writing"

employee only ever had a one month notice

steampowered

Your employment is for a maximum of four months following your start date and shall continue, subject to the remaining terms of this agreement, until it terminates without need for notice unless previously terminated by the Company

That wording is crystal clear to me. It says the contract terminates automatically after 4 months.

As the contract was never formally extended or replaced, it is not clear whether the employment continued on (1) the same terms as the existing contract (even though that had been terminated), or (2) on a rolling periodic contract.

The fly in the ointment is that the employer wrote to your wife to say that the contract had been extended. If your wife accepted that letter and did not object to it for some time, I think she would be taken to accept by her conduct that the existing contract had been extended.

I think you could argue for option 2, in which case the notice required would be the legal default of 1 week. But I don't think that would stand-up if legally challenged. Of course pursuing this would mean waving goodbye to any chance of a reference.

In reality, if your wife leaves early, what can the employer do? Apart from refusing a reference - not much, unless they can prove they suffered demonstrable financial loss as a result of your wife leaving early.

tea_lover

Deleted (cross posted with someone else and it didn't make sense )

getmore4less

steampowered wrote: »

That wording is crystal clear to me. It says the contract terminates automatically after 4 months.

As the contract was never formally extended or replaced, it is not clear whether the employment continued on (1) the same terms as the existing contract (even though that had been terminated), or (2) on a rolling periodic contract.

The fly in the ointment is that the employer wrote to your wife to say that the contract had been extended. If your wife accepted that letter and did not object to it for some time, I think she would be taken to accept by her conduct that the existing contract had been extended.

I think you could argue for option 2, in which case the notice required would be the legal default of 1 week. But I don't think that would stand-up if legally challenged. Of course pursuing this would mean waving goodbye to any chance of a reference.

In reality, if your wife leaves early, what can the employer do? Apart from refusing a reference - not much, unless they can prove they suffered demonstrable financial loss as a result of your wife leaving early.

The only term that changes is the end date if you stay employed after the end of a fixed term.

remember non renewal of a fixed term is dismissal.

the key phrase within the terms was

The contract also states under its Termination section "Your employment with the Company can be terminated by either party giving to the other not less than one months' notice in writing"

that clause would apply, overriding statutory notice.

Melkor100

Thanks to all who replied. The information provided has given clarity on the matter and my wife will take the appropriate course in light of all that has been said. We are both the wiser on this particular subject. Thanks again