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Stuart J
Stuart J, Solicitor
Category: UK Employment Law
Satisfied Customers: 22618
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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I have recently terminated my employment contract on the

Customer Question

I have recently terminated my employment contract on the 21st March 2016 in which I had a 12 week termination period or so I thought. After further review of my contract of employment there seems to be a error.
It reads -
"Entitlement to give or receive notice of termination of employment during employee's probationary period, the period is as set out above. Following the successful completion of the probationary period, the period of notice which the Employee is obliged to give the company to terminate their employment is 12 (twelve) weeks. The period of notice which the employee is required to and receive from the Company to terminate their employment is four weeks until they have been continuously employed for four years and thereafter the notice increases by one week for each year of continuous employment until they have completed twelve years continuous employment after which the maximum notice period will be twelve weeks notice"
I would like to ask where I stand pleaser as having terminated my employment which I based this on 12 weeks termination (the 12 (twelve)) being in bold my company have come back to me stating this is an error within the contract as follows -
"I have included the notice of termination clause which is from your contract of employment. The clause clearly states only with length of service the notice period increases by a week up to a maximum of 12 weeks, you do not have the length of service for the 12 week notice period. There is a typing error on your contract that states 12 weeks but the following sentence clearly explains how this is calculated and as explained you do not have the qualifying length of service for 12 weeks.
I realise you have stated the 12 weeks on your resignation letter and the letter issued to you confirms that we have accepted the resignation and you will be paid in lieu of notice as per the contract of employment which is up to 15th April 2016. The decision to pay you in lieu of notice rather than garden leave allows you to commence new employment from 25th March 2016."
The issue I have is that my new employer is not expecting me until mid June after the twelve week period and I am not being paid by my original company which I feel could be an error on their part as the above clearly states 12 weeks and proceeds any other comment.
Could you advise please?
Thank you
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Stuart J replied 1 year ago.

Good evening. Thank you for the question. It’s my pleasure to assist you with this.

Were you inside or outside the probationary period?

Customer: replied 1 year ago.

Hello and thank you. I was outside the probation period. This ended on December 1st 2015.

if required I could attached a copy of my contract or extract of the relevant section and or letter they also sent me regarding my contract termination.

Thank you.

Expert:  Stuart J replied 1 year ago.

I assume that the probationary period is not relevant and that you are out of it.

So, the employer has to give you one months notice but you have to give them 3 months notice? That in itself is probably unenforceable because it unfairly weighted in favour of the employer. However when you study the sentences in detail, it doesn’t quite say that because there is an ambiguity between the first sentence in the second sentence of that clause.

If there is an error in the contract, that’s their fault.

The reference to the one-month employer to employee notice specifically says “received from the company”. There is no reference to any increase when it’s being received from the employee. I disagree that the following sentence clearly explains how it’s calculated because it only calculates it in reference to notice from the employer.

Legally, if there is an ambiguous clause in a contract or 2 ambiguous clauses, the court will not choose one or the other, it will strike them both out which, in this case would not help you, because you would then be entitled to 1 months notice in all probability

The second sentence of the clause seems to have a bit missing because it says “The period of notice which the employee is required to xxxx and received from the company..

I think there should be the word “give” where I have inserted the XXX.

Alternatively, looking at it differently, if you remove the word “and” it changes the wording completely and then neither of the sentences are ambiguous.

So the second sentence clearly contradicts the first sentence. However, even allowing for that.

If this were to go to tribunal, or to the County Court for the payment of the 2 months wages you are adrift, could possibly argue that you relied on the wording of this contract and therefore, they are bound by it.

Unfortunately, if the employer will not play ball and stick by this, you are faced with taking them to the tribunal or to the Small Claims Court because you cannot beat them with a stick until they roll over although, with the threat of tribunal or court, and bearing in mind this is quite clearly their fault, they may decide to simply pay you the 2 months money.

There isn’t a magic solution to get the employer to pay up although a letter from a solicitor may focus their mind along with the threat of tribunal proceedings.

Does that answer the question?

Can I answer any specific points arising from this?

Customer: replied 1 year ago.

Thank you for your response. Very much appreciated.

I agree, it's the second sentence that is ambiguous indeed which is where I did or do not stand. It seems a 50/50 decision to take this further or not?

What I also do not understand is that I terminated my contract on the 21st March 2016 and that the company are only paying me up to the 15th April which is the Friday and not the full four weeks which would be the 18th April.

I also have four days outstanding that they said they would pay me (I have 29 in a year) and have taken four already to date.

Expert:  Stuart J replied 1 year ago.

You have nothing to lose by going to small claims court or tribunal other than the application fee. Even if you lost, the court would not award costs against you.

Those dates do equate to 4 weeks notice (if we were reading the contract in favour of them) and if you gave your notice in on 21 March, 4 weeks notice expires on the 15th unless you get paid for weekends. It is four working weeks which does not include weekends.

You say you have four days outstanding. I don’t know what you mean by this. Do you mean for days holiday outstanding? Whether you will be entitled to that or not depend on the provision in your contract for being paid for accrued holidays when you leave.

Customer: replied 1 year ago.

I agree I have nothing to lose in terms of taking this further, however how would this look with the new company I am going to work for and potentially my colleagues I worked with at my old company as I don't like to burn bridges (however this is with HR, not them).

If I were to word an e-mail to the HR department as per your response to me, do you think they would take note or simply ignore me as it's a big company I was with and quite aggressive.

Expert:  Stuart J replied 1 year ago.

Going to a tribunal or taking your previous company to court would certainly burn your bridges if it came to ever going back to work for them. You may also find that your new employer wouldn’t be too pleased either because if you have taken your previous employer to court (even under these circumstances) they may think that they would be in the firing line at some stage in the future. Therefore, employees have been to a tribunal, even if they win, can become undesirable.

You have nothing to lose by sending them an email either.

What I would do is, contact your new employer and point this ambiguity out in the contract and tell them that your existing employer has suggested you should have four weeks notice rather than 12 and therefore, you are going to be available early if they want to take you on early. I don’t know whether you’ve already asked that question or not but you may find they would actually welcome having you there sooner rather than later.

Just don’t word it that the current employer is anxious to get rid of you!

Customer: replied 1 year ago.

Stuart,

Thank you for your responses. Very much appreciated.

I will send my old employer an e-mail and I have also contacted my new employer and asked the question.

Expert:  Stuart J replied 1 year ago.

I am glad to help. Please do not forget to rate my answer service positively so that I get credit from my time today. You will get the impression the thread closes but it does not, it does remain open if you want to follow any points. Thank you. Kind regards

Expert:  Stuart J replied 1 year ago.

Hello again. Can I assist you any further with this? Would a telephone call help? I will submit a Premium Service proposal for you.

When you have a second, can you please make sure that use the rating service so that I get credit for my time. We can follow anything arising still.

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