Our creep through the minefield of employment law takes us passed the consequences of resignation and the difference between a getting a job and being employed

A resigning matter

I am not in dispute with my employer, but I was wondering in general about employment law relating to employees giving notice. I work in the public sector and have been there for a year, but I am on three months’ notice. This was contained in my standard contract from the beginning, but is effectively a “lock-in” because potential future employers want new staff immediately and laugh at the idea of waiting three or more months. What would be the likely consequence of me breaking my contract by leaving early?

You’re right: long notice periods can cause problems for employees who wish to leave, although they also protect employees from dismissal.

If you do leave, your employer has two sanctions. First, it can go to court to force you to remain on gardening leave over your notice period. It will need to have drafted the necessary provisions into your contract, and will have to show that it has a business need to protect. Alternatively, it could consider suing you for damages for breach of contract.

In practice, employers go to court only in extreme circumstances – injunctions are difficult to obtain and expensive, and a claim for damages is hard to prove. Obviously, you won’t get paid for the time you don’t work and an employer is unlikely to give you a good reference …

Join the resistance

My employer has paid for me to attend a distance-learning course, and agreed to allow me half-a-day’s study leave a week – which never materialised, owing to pressures of work and the understaffing of my department. My employer has said that if I choose to leave the company, I will be liable for costs they have incurred on placing me on the course. I’ve signed nothing that binds me to these so-called terms. If I left, would my employer be allowed to deduct the costs from my last and final pay?

The good news is that your employer cannot deduct course fees from your salary. The bad news is even though you say you have not signed anything, you may be liable for the fees; it depends what was agreed and whether the employer can prove it.

Section 13 of the Employment Rights Act 1996 makes it plain that an employer can only deduct wages from an employee’s salary in very specific circumstances (where the employee has agreed to the deduction and signed a document to this effect). An oral agreement will not do.

Despite this, it is possible that you entered into a regular loan agreement in your conversations with your employer. I would say that it will be for your employer to prove any such agreement. It was not sensible of them to commit to pay your fees without confirming the arrangements in writing. They will need to show that an offer was made, that it was accepted, that the terms of the agreement were sufficiently certain and that the parties intended to be legally bound by them. So unless your employer has some good evidence that you agreed to repay the course fees, I would resist its claim.

Am I employed yet?

Nine months ago I joined a firm and my letter of offer stated that it was subject to a six-month probationary period. Five months into that period, I was given one month’s notice. I explained that I had not been given enough time for the results of the project I had been working on to come through. The director told me that if I worked my notice and could prove that my performance had improved, I could continue on a month-by-month basis. I received a letter confirming this. One month later, I met again with the director and was given a six-week extension, which was not confirmed in writing. Since then I have worked for three months and have not been called for further meetings. Can I assume that the company has taken me on as a full-time employee and that I would be entitled to the three months’ notice stated in my contract?

I would like to say yes, but it depends on what is in your contract and what has been agreed. When your employer gave you one month’s notice, the intention was to dismiss you at the end of your probationary period. This notice appears to have been retracted by agreement and the contract was varied to extend your probation by a month. This seems legal and binding. A month later, it appears that it was agreed that the probationary period would be extended by a further six weeks. Again, this appears lawful. At the end of that six-week period, the probation was not extended any further. It has therefore expired and you have continued to work. I would agree with you that you now appear to be a permanent employee and entitled to three months’ notice.

There is, however, a possible fly in the ointment. When you agreed to the first extension of the probationary period, did you also agree to a shorter notice period? As a matter of evidence, it will be for the employer to prove this as you have a contract stating that when you become permanent you are entitled to three months’ notice.

From a practical point of view, you may ask your manager to confirm whether you have passed the probationary period and what notice you are on. However, the longer matters remain as they are, the better it will be for you – so sitting tight and keeping your head down may be a better approach.

Edward Goodwyn is a partner in Masons’ employment group. If you have a legal query about your employment, email us at buildingcareers@cmpinformation.com