Unfair and unreasonable notice period?

Tammy8889

Hello MSE!

My current employment contract, which has a 90 day probation period, has the following notice periods:

• Within 90 day probation: company can give me 1 week, I must give 1 month
• Outside 90 day probation: company can give me 1 month, I must give 3 months

I have been browsing the web and it appears that both an unbalanced notice period, and a 3 month notice are not necessarily uncommon.. HOWEVER, would this be considered unreasonable for a junior/mid-level software engineer that has only been at the company for 3 months?

I ask this because I handed in my notice 2 days after my probation period ended (92nd day), and my employer is saying I must work the full 3 month probation period, despite requesting a reduction to a 2 month period.

Although within the bounds of the contract, I feel this is totally unreasonable as I did not know my probation period had ended (I thought it was 3 months, and there was no upcoming review etc). Ideally I want to know if I have a leg to stand on if I breached the contract.

Masomnia

What exactly does the contract say about the end of your probation?

Tammy8889

It simply states: After a 90-day probation period, the company notice period to give me will go up to 1 month, and my notice period to give company will go up to 3 months". There is nothing else about the probation period.

Masomnia

In that case the standard position is that unless you're told otherwise your probation will be deemed passed. So they can hold you to the three months, but really if you don't want to be there why keep you there against your will, seems a bit pointless.

If you do breach your contract they could put that in a reference, and in theory they could take you to court for the costs incurred as a result of the breach. Doesn't happen very often but in theory they could.

Tammy8889

It does not make sense at all to them, I have no idea what their game is but they seem to think keeping me for the full 3 months against my will is better than losing me...

I understand about the breach of contract. I have only been there for 3 months so don't plan to use them as a reference, I can easily justify the gap on my CV. My main concern is if they took me to court. Would the contract be deemed "unreasonable" and work in my favour. I also don't see how they can claim "loss of income/contract" if I am literally at the bottom of the company hierarchy and been there for 3 months.

[Deleted User]

This happened to me before, a few years ago days past the 6 month company probation - it turned out they needed me to stay simply because they had authorised someone else's leave, ironically who shouldn't have been granted leave during their probation as the company rule was you didn't book leave during probation but somehow this person managed to. I'm afraid it went on to cost holiday pay (as per the contract on such matters) and lot of ill feeling. The situation never over turned.

More recently when the sore subject nearly came up again - the concern from the organisation simply was that I'd be in an in debt situation to them as I'd been allowed to take more holiday (apparently) then accrued. I'm still surprised 10 weeks of working only allowed for 1 day holiday but there we go. Oh dear I think they saw me coming with their 'kind help' of realising me days early in the end!

All you can do is appeal to their better nature. There always seems to be a reason in these situations.

One time I got lucky! A company failed to increase wages by £500 at the contractual time and so could never ask me to work the month's notice as the contractual lack of increase in wage, meant they didn't confirm probation as passed in more ways then the average letter of probation passed!

TELLIT01

Tammy8889 wrote: »

I understand about the breach of contract. I have only been there for 3 months so don't plan to use them as a reference, I can easily justify the gap on my CV.

Lying on a CV isn't a great idea. With the new HMRC system for companies to update payroll information 'live', I don't know if a new employer would be able to see who you'd worked for previously. If so, I can imagine your new job wouldn't last too long.

martinthebandit

Personally I would be telling them I will be leaving at the end of the week.

sangie595

Tammy8889 wrote: »

It does not make sense at all to them, I have no idea what their game is but they seem to think keeping me for the full 3 months against my will is better than losing me...

I understand about the breach of contract. I have only been there for 3 months so don't plan to use them as a reference, I can easily justify the gap on my CV. My main concern is if they took me to court. Would the contract be deemed "unreasonable" and work in my favour. I also don't see how they can claim "loss of income/contract" if I am literally at the bottom of the company hierarchy and been there for 3 months.

It doesn't matter - if they take you to court then the court will not consider your opinion on the reasonableness of the clause. They will only concern themselves with the existence of the clause. It exists. Therefore your notice period is three months.

I agree with the comment that lying on your CV or application is not sensible or safe. Even if they don't find out from HMRC live updating, if they find out at any point in time, even years later, it gives them cause to dismiss. And you'd be amazed how often they do find out. Why would you need to lie anyway - you aren't hiding anything, are you? Or is the fact that the employer is holding you to your notice period, and you appear to be leaving without another job to go to, "secret code" for there is something you aren't telling us?

Tammy8889

sangie595 wrote: »

It doesn't matter - if they take you to court then the court will not consider your opinion on the reasonableness of the clause. They will only concern themselves with the existence of the clause. It exists. Therefore your notice period is three months.

I agree with the comment that lying on your CV or application is not sensible or safe. Even if they don't find out from HMRC live updating, if they find out at any point in time, even years later, it gives them cause to dismiss. And you'd be amazed how often they do find out. Why would you need to lie anyway - you aren't hiding anything, are you? Or is the fact that the employer is holding you to your notice period, and you appear to be leaving without another job to go to, "secret code" for there is something you aren't telling us?

I already have a new job lined up, and signed contracts etc. No one will be checking my CV again until I leave my new job (who already know about my current job), which I have no plans to do and would tarnish my reputation even furthert. I won't be fabricating any information on my CV either, I can simply fill the gap with my own business which I run on the side (known by current and future employer).

TBagpuss

Tammy8889 wrote: »

It does not make sense at all to them, I have no idea what their game is but they seem to think keeping me for the full 3 months against my will is better than losing me...

Perhaps they assume that you are professional enough to do the job you are contracted to do, during the notice period you agreed to.

Recruitment doesn't happen over night, They will have to advertise to find someone to replace you, and then train that person. It's not unreasonable for them to want the work to be covered during the process.

It may well also be that during your probation period (or some of it) you were not very productive for the company as you were training and becoming familiar with their systems, and having paid you for that period they would quite like to then get their money's worth for the investment in time and resources made in training you.

You can ask them whether they are willing to agree a shorter period, and you can ask your new employers to agree a later start date.

If you walk out and don't work your full notice then your employer could, potentially, make a claim against you for any losses they suffer, which might include the cost of getting a temp or locum in while they recruit your replacement.

Of course, they may decide not to pursue it. That's the risk you take. Also, depending on the size of your industry, you may find you get a reputation for being unreliable.