Can my employer hold me to my notice period if they cannot pay me on time?

vostro123

My employer has had cash flow problems for over a year. I first became aware of them at the beginning of 2018 when my salary was paid late. The uncertainty has not been resolved. I have not been paid on time since August.

I am getting paid - but it is up to 2 weeks late.

I have been offered a job elsewhere however I have a long notice period. This new job would like me to start before the end of my notice period. Is my employer able to hold me to my notice period even though they cannot guarantee I will get paid on time?

Thanks.

lincroft1710

Yes your employer can hold you to your notice period, 2 wrongs do not make a right. Ask your employer if they will agree to a shortened notice period.

TELLIT01

One possible option would be to say to your employer that your contract of employment states you should be paid on x date. They are failing to do that, are therefore in breach of contract and you plan to leave on (date). See how they react. If they immediately start paying on the due date you will have more of a problem to resolve.
If the company has a major cashflow problem they may not be in a position to take any action against you if you do leave before the notice period is up, but that is always a risk.

vostro123

TELLIT01 wrote: »

One possible option would be to say to your employer that your contract of employment states you should be paid on x date. They are failing to do that, are therefore in breach of contract and you plan to leave on (date). See how they react. If they immediately start paying on the due date you will have more of a problem to resolve.
If the company has a major cashflow problem they may not be in a position to take any action against you if you do leave before the notice period is up, but that is always a risk.

Thanks. My employment contract states that I will be paid monthly.

They know I'm stressed due to the situation so it's worth asking at least.

lincroft1710

vostro123 wrote: »

Thanks. My employment contract states that I will be paid monthly.

"Paid monthly" means you are paid every month as opposed to weekly, does it state exactly when you should be paid, e.g. 1st working day or last working day?

Masomnia

If they're paying you every month then it's probably too late to claim you've been constructively dismissed and are thus free from your contractual obligations. Based on what you've said.

If they specify a date and are not paying you on that date then you'd have a stronger case.

If you did leave in breach of your contract then I think it's unlikely they'll do anything as they won't want to take on the cost of taking you court. It's unusual at the best of times.

They could give a reference stating you left in breach of your contract

I'd talk to them.

JCS1

If they have cash flow issues, they may be happy to let you negotiate a shorter notice period as it will save them money. You need to ask them.

Brummie85

You can't really 'tit for tat' with an employer on your contract. As previously mentioned, two wrongs don't make a right.

Have a discussion with them. Reiterate the point about the stress caused by late payments. Explain that it has caused enough concern for you to go out and seek alternative employment and that you have been successful in finding a job that appears more secure (I hope you've actually asked the new place how they're doing before jumping ship!). Tell them that the extra security is the overriding sway in deciding to leave. It's probably as stressful a time for them as it is for you - the weight of a struggling business in their name will be causing them a lot of worry as well. If you're not going because of working conditions, more money or leaving in dispute I think they will understand your motivation to work somewhere that can afford to pay you at the correct time. They'll know your own bills don't move around their ability to pay you.

Ask them for the shorter notice period, but do offer to work to your agreement if required.