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F E Smith
F E Smith, Solicitor
Category: UK Employment Law
Satisfied Customers: 9604
Experience:  30 years in General Practice
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I have an enquiry on whether I can leave the company with

Customer Question

My Name is Edyta.I have an enquiry on whether I can leave the company with immediate effect, although contractually I have to give 2 month’s notice.To provide you with some background on the issue, back in July 2015 I returned to work having been on maternity leave for 12 months. Prior to my return I agreed (in writing) my working pattern (2 days a week working from home, 3 days a week working from the office) with my then line manager. It was not specified at the time that my flexible working was only for a fixed or trial period and as I have exercised this working pattern, I am led to believe the flexible working agreement becomes a permanent change to my terms and conditions (however a new contract has never been send to me reflecting this change).Whilst I was on maternity leave the company had started going through a number of structural changes. Some of the implementation of these changes continues to be executed now. Back in January 2016, all employees within my department were notified that working from home will cease as from 1st April 2016. I raised concerns regarding the enforcement of this new change and also went down the formal route of submitting a flexible working application based on the home working arrangement previously agreed with my former manager. Unsurprisingly, the application was refused and I then appealed the decision, to which my employer upheld their decision and I am now left with having to work from the office 5 days of the week which is simply unworkable for me.When I received notification back in January that home working will end, I did make it quite clear with my employer that I was not able to accommodate their request. I also stated in my recent appeal letter that I would have no choice but be forced to leave if the decision was upheld.As I am led to understand that my initial agreement for flexible working became a permanent change to my terms and conditions, the questions I have are:1. Have the company fundamentally breached these Ts & Cs by ending my ability to work from home, and
2. If so, do I have the right to leave the company with immediate effect?It is important to note that my employer has not carried out any due consultation or agreement throughout this process.Your advice would be much appreciated.Regards,
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  F E Smith replied 1 year ago.
There are a couple of issues here.The first one with regard to the employer’s potential breach of your employment contract and the other one with regard to your notice.Just because the employer may (or may not) have breached the contract does not give you the right to breach the contract also and leave early. You are therefore bound to give you a full notice and if you don’t, and they have to take someone else on the cover that period, they can seek the extra cost is from you.The company is allowed to make reasonable adjustments to working patterns and they did it in your favour in 2015 when they allowed you to work 2 days from home. They have now stopped that for everyone and have simply reverted back to the situation as it was when you first started.You say that it is a workable for you but that was the situation that you were in when you took the job on and whilst the employer is under a duty to make reasonable adjustments, actually working from home may not be practicable which is why they have stopped it. The fact that it may not suit you is not relevant based upon the facts you have given.If you had worked there for 2 years and you felt they had implemented this change to get rid of you, you would have a claim for constructive dismissal but as this has been implemented across the board, the chances of bringing a successful claim for constructive dismissal are going to be remote.Can I clarify anything for you?Please don’t forget to rate the service positive, it is an important part of the process by which experts get paid.Best wishesFES
Customer: replied 1 year ago.
Thank you for your reply. I attached a couple of documents for your review referring to my appeal for flexible working and the decision of this apeal. I hope this would provide some clarity on the matter and enable you to confirm if I am able to leave the company with immediate effect. I look forward to your views on the matter.
Expert:  F E Smith replied 1 year ago.
I’m sorry, it doesn’t change my answer. Whether they are in breach of their obligations or not is a separate issue from your own obligations. A breach by them does not allow you to breach your own notice period. Sorry. You may have another remedy in respect of their actions but if they won’t let you leave early, that right does not flow from their breach.Of course, is probably very little they can do about it except that it may be reflected in any future reference which is going to be particularly undesirable for you if you were to leave early without consent.What you might want to do is try negotiating with them to say that you won’t take this issue any further provided they will let you enter a compromise agreement whereby they agree to let you go early. That could well solve the problem. They don’t want a tribunal claim from you and you want to go early and if you can come to a mutual understanding, it solves all the problems.