Terminating an employee contract before start date to start a new contract, what are my rights?

Manxman_in_exile

prowla said:

From the government's site:

https://www.gov.uk/employment-contracts-and-conditions/written-statement-of-employment-particulars 

Other information the employer must give on day one

On the first day of employment the employer must also provide the employee or worker with information about:

• sick pay and procedures
• other paid leave (for example, maternity leave and paternity leave)
• notice periods

The employer can choose whether to include this information in the principal statement or provide it in a separate document. If they provide it in a separate document, this must be something that the employee or worker has reasonable access to, such as on the employer’s intranet.

That implies that there is no requirement of a notice period before day one.

But that same government website also says this:

"Accepting a contract

As soon as someone accepts a job offer they have a contract with their employer. [My emphasis]  An employment contract does not have to be written down"

Employment contracts - GOV.UK (www.gov.uk)

Doesn't that show that the OP is in theory bound by the notice terms in his contract as soon as he has accepted it, whether he's actually started work or not?  (Not that I would necessarily usually place much reliance on the government's interpretation of the law)

I've no doubt your personal experiences that you describe in your other post are accurate, but they may not reflect the legal position.  I would have thought that in the case where the job offer you had already accepted was withdrawn, your solicitor could have advised you to hold out for a bigger payment to reflect your notice period under the contract that had just been agreed between you and the new employer?  (Unless that would have been no more than their good will payment).

[EDIT:  I suppose it could be argued that there are in fact two separate contracts.  The first an agreement that the prospective employee will turn up for work on the appointed day and that the prospective employer will provide employment, and the second an agreement detailing the terms of that employment?]

prowla

Jillanddy said:

prowla said:

From the government's site

Other information the employer must give on day one

On the first day of employment the employer must also provide the employee or worker with information about:

• sick pay and procedures
• other paid leave (for example, maternity leave and paternity leave)
• notice periods

The employer can choose whether to include this information in the principal statement or provide it in a separate document. If they provide it in a separate document, this must be something that the employee or worker has reasonable access to, such as on the employer’s intranet.

That implies that there is no requirement of a notice period before day one.

No it doesn't. You have misread that. This is about statutory requirements. The law says that as a minimum on the first day of work you must be provided with a statement of the terms of your employment, which must include this information. It doesn't say that you can't provide it before then. My employer always provides it before then. If statutory terms apply, then the notice period in the first month is nil. But statutory terms do not apply in this case - the OP has said they have already agreed a contract with better than statutory terms. So the contractual terms apply.

Sorry but I don't know how to do multiple quotes but you also said:

"My personal experience:

• I've had a contract of employment which gave the notice requirements as 1 week within the first month of employment and 1 month thereafter, but no mention of anything before the start.
• I've previously accepted a new job and given my required 3 months notice; then on the Friday before I was due to start the new job on the Monday (and during my leaving do), I got a call saying the company'd had a bad quarter and had put a freeze on recruitment, so my job was no longer available. I took legal advice and was told there was nothing to be done. The company did give me a month's pay as a goodwill gesture.
• I've worked at a company where a new employee was taken on and they just didn't turn up on their first day; the general reaction was puzzlement and then a comment that we'd probably dodged a bullet then."

In the first case it is irrelevant - the contract is formed the minute both parties agreed it, so it doesn't have to mention anything about "before the start". Once the contract is formed, the terms apply. In the second case, your legal advice was incorrect - I personally know somebody who successfully sued for notice pay in the same situation. And employers don't really do goodwill gestures. They do "let's make sure that nobody sues us". In the third case, you were probably all right - just as in most cases the employer won't sue. That doesn't mean they can't or won't. 

Well, without the OP's contract and its precise wording, we can only speculate what it might be.

Since statutory terms are nil, then giving notice before the start of work complies with that, as the 1-month stipulation only covers once they are in their 1st month of employment. However, by definition, they haven't started their employment before then.

In my first case there, what would the required notice have been had I changed my mind before starting? Would it have been the "nil" you mentioned?

From a real-world perspective, as far as the employer goes, I'd assume that they wouldn't really want someone turning up who plainly didn't want to be there, forcing them to come in and put in minimal effort for a week or two and say "give me my pay, please".

As far as action the employer could take, the quid pro quo is that the employee provides services and receives commensurate pay for them and that is the exact measure of the value of their work; if they don't provide the services then they don't get paid and so there is a net zero. Given that a significant portion of the initial period in a company could be training & working under supervision, it's likely that the employer would be getting little return in that initial period and would be losing money.

Anyway, what we've got here is opinion and interpretation; I'd be interested in seeing an actual law which stipulates that in-employment notice terms apply pre-employment.

Undervalued

prowla said:

Jillanddy said:

prowla said:

From the government's site

Other information the employer must give on day one

On the first day of employment the employer must also provide the employee or worker with information about:

• sick pay and procedures
• other paid leave (for example, maternity leave and paternity leave)
• notice periods

The employer can choose whether to include this information in the principal statement or provide it in a separate document. If they provide it in a separate document, this must be something that the employee or worker has reasonable access to, such as on the employer’s intranet.

That implies that there is no requirement of a notice period before day one.

No it doesn't. You have misread that. This is about statutory requirements. The law says that as a minimum on the first day of work you must be provided with a statement of the terms of your employment, which must include this information. It doesn't say that you can't provide it before then. My employer always provides it before then. If statutory terms apply, then the notice period in the first month is nil. But statutory terms do not apply in this case - the OP has said they have already agreed a contract with better than statutory terms. So the contractual terms apply.

Sorry but I don't know how to do multiple quotes but you also said:

"My personal experience:

• I've had a contract of employment which gave the notice requirements as 1 week within the first month of employment and 1 month thereafter, but no mention of anything before the start.
• I've previously accepted a new job and given my required 3 months notice; then on the Friday before I was due to start the new job on the Monday (and during my leaving do), I got a call saying the company'd had a bad quarter and had put a freeze on recruitment, so my job was no longer available. I took legal advice and was told there was nothing to be done. The company did give me a month's pay as a goodwill gesture.
• I've worked at a company where a new employee was taken on and they just didn't turn up on their first day; the general reaction was puzzlement and then a comment that we'd probably dodged a bullet then."

In the first case it is irrelevant - the contract is formed the minute both parties agreed it, so it doesn't have to mention anything about "before the start". Once the contract is formed, the terms apply. In the second case, your legal advice was incorrect - I personally know somebody who successfully sued for notice pay in the same situation. And employers don't really do goodwill gestures. They do "let's make sure that nobody sues us". In the third case, you were probably all right - just as in most cases the employer won't sue. That doesn't mean they can't or won't. 

Well, without the OP's contract and its precise wording, we can only speculate what it might be.

Since statutory terms are nil, then giving notice before the start of work complies with that, as the 1-month stipulation only covers once they are in their 1st month of employment. However, by definition, they haven't started their employment before then.

In my first case there, what would the required notice have been had I changed my mind before starting? Would it have been the "nil" you mentioned?

From a real-world perspective, as far as the employer goes, I'd assume that they wouldn't really want someone turning up who plainly didn't want to be there, forcing them to come in and put in minimal effort for a week or two and say "give me my pay, please".

As far as action the employer could take, the quid pro quo is that the employee provides services and receives commensurate pay for them and that is the exact measure of the value of their work; if they don't provide the services then they don't get paid and so there is a net zero. Given that a significant portion of the initial period in a company could be training & working under supervision, it's likely that the employer would be getting little return in that initial period and would be losing money.

Anyway, what we've got here is opinion and interpretation; I'd be interested in seeing an actual law which stipulates that in-employment notice terms apply pre-employment.

No it is not!

A commercial company employs people to make a profit out of their time, not just to break even. Even a not for profit organisation may well be obliged to provide a particular service. If an employee doesn't turn up they may have to hire a freelance person or a temp at a higher cost in order to meet their obligations.

Employees have been successfully sued for either not working their contracted notice or for failing to turn up on their contracted start date. It is not that common but it can and does happen fairly regularly.

Manxman_in_exile

I think the strictly legal answer to the question is that if anyone is offered a job and they accept that offer, then they (and the offeree) are bound by the terms of that offer from the point that the employee accepts* the offer.  (It might become a bit more complicated if the offer or acceptance are conditional on something else).

But in practice, if a prospective employee reneges on their acceptance before even starting the job and doesn't turn up from day one, a prospective employer is unlikely to go to the trouble of suing the "reneger", except in what are likely to be exceptional circumstances where having to recruit again leads to the employer incurring considerable expense - considerable enough to make it worth suing.

But in the situation where the prospective employer is the one that reneges on the agreement, I think the prospective employee is legally entitled to a payment in lieu of whatever the contractual notice in the agreement is.  If I were in that position I would definitely hold out for full PILON and if that payment was significant I'd be prepared to sue for it.  (I tend to agree with Jillanddy that employers don't make "goodwill gestures" as a gesture of goodwill - rather to prevent themselves being sued!)

So I think the answer to the OP is:  yes - your recruiter is correct and the prospective employer could sue you, but they aren't very likely to do so unless the job is such that the OP is very costly to replace.


*The only thing I would query is how do you ascertain - in many cases - what the terms of any offer and acceptance are.  I suspect that in many cases where jobs are offered and accepted, it might not be 100% certain and clear from the offer what all the terms employment are - eg notice periods.  (Thats why I tentatively suggested earlier that there may actually be two agreements involved.)  That doesn't seem to be an issue here, however, as the OP knows what notice period applies to him

Undervalued

Manxman_in_exile said:

I think the strictly legal answer to the question is that if anyone is offered a job and they accept that offer, then they (and the offeree) are bound by the terms of that offer from the point that the employee accepts* the offer.  (It might become a bit more complicated if the offer or acceptance are conditional on something else).

But in practice, if a prospective employee reneges on their acceptance before even starting the job and doesn't turn up from day one, a prospective employer is unlikely to go to the trouble of suing the "reneger", except in what are likely to be exceptional circumstances where having to recruit again leads to the employer incurring considerable expense - considerable enough to make it worth suing.

But in the situation where the prospective employer is the one that reneges on the agreement, I think the prospective employee is legally entitled to a payment in lieu of whatever the contractual notice in the agreement is.  If I were in that position I would definitely hold out for full PILON and if that payment was significant I'd be prepared to sue for it.  (I tend to agree with Jillanddy that employers don't make "goodwill gestures" as a gesture of goodwill - rather to prevent themselves being sued!)

So I think the answer to the OP is:  yes - your recruiter is correct and the prospective employer could sue you, but they aren't very likely to do so unless the job is such that the OP is very costly to replace.


*The only thing I would query is how do you ascertain - in many cases - what the terms of any offer and acceptance are.  I suspect that in many cases where jobs are offered and accepted, it might not be 100% certain and clear from the offer what all the terms employment are - eg notice periods.  (Thats why I tentatively suggested earlier that there may actually be two agreements involved.)  That doesn't seem to be an issue here, however, as the OP knows what notice period applies to him

Sort of.

If, for example, four weeks notice had been agreed but the employer tell the employee two weeks before the start date that they are no longer wanted, notice starts from that point (technically the next day) so the employee would only be entitled to two weeks money (i.e from the start date until the remainder of the the four weeks notice expires). Actually they would also accrue roughly a day's holiday during those two weeks so they should be paid for that too.

Or, of course, the employer could require them to work those two weeks.

Jillanddy

Undervalued said:

Manxman_in_exile said:

I think the strictly legal answer to the question is that if anyone is offered a job and they accept that offer, then they (and the offeree) are bound by the terms of that offer from the point that the employee accepts* the offer.  (It might become a bit more complicated if the offer or acceptance are conditional on something else).

But in practice, if a prospective employee reneges on their acceptance before even starting the job and doesn't turn up from day one, a prospective employer is unlikely to go to the trouble of suing the "reneger", except in what are likely to be exceptional circumstances where having to recruit again leads to the employer incurring considerable expense - considerable enough to make it worth suing.

But in the situation where the prospective employer is the one that reneges on the agreement, I think the prospective employee is legally entitled to a payment in lieu of whatever the contractual notice in the agreement is.  If I were in that position I would definitely hold out for full PILON and if that payment was significant I'd be prepared to sue for it.  (I tend to agree with Jillanddy that employers don't make "goodwill gestures" as a gesture of goodwill - rather to prevent themselves being sued!)

So I think the answer to the OP is:  yes - your recruiter is correct and the prospective employer could sue you, but they aren't very likely to do so unless the job is such that the OP is very costly to replace.


*The only thing I would query is how do you ascertain - in many cases - what the terms of any offer and acceptance are.  I suspect that in many cases where jobs are offered and accepted, it might not be 100% certain and clear from the offer what all the terms employment are - eg notice periods.  (Thats why I tentatively suggested earlier that there may actually be two agreements involved.)  That doesn't seem to be an issue here, however, as the OP knows what notice period applies to him

Sort of.

If, for example, four weeks notice had been agreed but the employer tell the employee two weeks before the start date that they are no longer wanted, notice starts from that point (technically the next day) so the employee would only be entitled to two weeks money (i.e from the start date until the remainder of the the four weeks notice expires). Actually they would also accrue roughly a day's holiday during those two weeks so they should be paid for that too.

Or, of course, the employer could require them to work those two weeks.

Yes, ^^^this^^^. That is the legal position even if not everyone wants to see that. And it works in reverse too. If the employee reneges and "gives notice" they are bound in the same way. In practice, pretty much nobody adheres to it because it is more trouble than it is worth, especially for an employer holding a reluctant employee to their terms - who wants someone to work for a couple of weeks or months knowing they are already out of the door. But that does not mean they can't be held to it, and it is really irresponsible to tell people that they can't be held to the terms of their employment contract. The risk may be minimal, and say that, but it is still a risk. Just as it is a risk to walk out and not serve notice - it is rare an employer sues someone for not working their notice, but it can happen.

Manxman_in_exile

Undervalued said:

Manxman_in_exile said:

I think the strictly legal answer to the question is that if anyone is offered a job and they accept that offer, then they (and the offeree) are bound by the terms of that offer from the point that the employee accepts* the offer.  (It might become a bit more complicated if the offer or acceptance are conditional on something else).

But in practice, if a prospective employee reneges on their acceptance before even starting the job and doesn't turn up from day one, a prospective employer is unlikely to go to the trouble of suing the "reneger", except in what are likely to be exceptional circumstances where having to recruit again leads to the employer incurring considerable expense - considerable enough to make it worth suing.

But in the situation where the prospective employer is the one that reneges on the agreement, I think the prospective employee is legally entitled to a payment in lieu of whatever the contractual notice in the agreement is.  If I were in that position I would definitely hold out for full PILON and if that payment was significant I'd be prepared to sue for it.  (I tend to agree with Jillanddy that employers don't make "goodwill gestures" as a gesture of goodwill - rather to prevent themselves being sued!)

So I think the answer to the OP is:  yes - your recruiter is correct and the prospective employer could sue you, but they aren't very likely to do so unless the job is such that the OP is very costly to replace.


*The only thing I would query is how do you ascertain - in many cases - what the terms of any offer and acceptance are.  I suspect that in many cases where jobs are offered and accepted, it might not be 100% certain and clear from the offer what all the terms employment are - eg notice periods.  (Thats why I tentatively suggested earlier that there may actually be two agreements involved.)  That doesn't seem to be an issue here, however, as the OP knows what notice period applies to him

Sort of.

If, for example, four weeks notice had been agreed but the employer tell the employee two weeks before the start date that they are no longer wanted, notice starts from that point (technically the next day) so the employee would only be entitled to two weeks money (i.e from the start date until the remainder of the the four weeks notice expires). Actually they would also accrue roughly a day's holiday during those two weeks so they should be paid for that too.

Or, of course, the employer could require them to work those two weeks.

Good point.  Understood.