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Ben Jones
Ben Jones, UK Lawyer
Category: UK Law
Satisfied Customers: 47610
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I have an ex employee who following various absences decided

Customer Question

Hi I have an ex employee who following various absences decided to resign on the day they were invited back into the office to discuss their situation and find out if the company could help them. They did not give a notice period in their email resignation and did not attend the agreed and scheduled meeting. Their resignation was accepted with immediate effect. We paid them one weeks notice and now they are claiming breach of contract that they should have received one months notice. Am I right in thinking they were not entitled to anything and are in fact in breach of contract for not stating their notice period and making themselves available to work their notice period? Thank you in advance for any advice you can give.
Submitted: 2 years ago.
Category: UK Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Did the contract specifically entitle them to a months notice on terminating?
Customer: replied 2 years ago.
Hi Ben. Thank you for your assistance. Their contract stated one months written notice is required from either party upon successful completion of their probation period. However they were on probation which is one weeks notice from either party. They did not sign and return their contract. They are claiming they should have received one months pay.
Expert:  Ben Jones replied 2 years ago.
Son to confirm they were still on probation when they resigned? What were the rules on probation, how long did it last for and how was it deemed successfully completed?
Customer: replied 2 years ago.
Yes they were as no probation review was carried out. The review date happened while they were on annual leave with a review to take place upon their return. their argument is the probation was passed by default as the employer did not exercise their right in writing to say it would be extended, hence their claim for one months notice. They failed to return after probation by resigning from the company giving no notice period as per their contract.
Expert:  Ben Jones replied 2 years ago.
Hello, they may have an argument that their probationary period has been successfully completed. The relevant case in these circumstances is that of Przybylska v Modus Telecom Limited.
There, the employee Miss Przybylska, was employed on a 3 month probationary period, which could have been extended by the employer. During the probation her employment could be terminated with a week’s notice, with a longer period applying once the probation was completed. She was on holiday when her probationary period expired and the employer had not yet taken steps to extend her probationary period. A couple of weeks later she was dismissed with just a week’s notice, as required during her probationary period.
She complained of breach of contract and the decision was that she should have been paid 3 months notice, which would have applied after the completion of her probationary period. The Tribunal said that the assessment on whether to confirm the completion of her probation or extend it should have taken place during the probationary period and if it wanted to the employer should have extended the probationary period before it was due to expire. Therefore, if the employer has not taken steps to extend the probation before it expires, it would be assumed that it has been successfully completed and the terms that would apply following successful completion would be the valid ones.
However, even if they were due a month’s notice, that is only payable if they are ready and willing to work through that period. It is not possible for someone to resign, refuse to work their notice period and still expect to be paid for it. In fact you have done more than is expected of you by paying them the week’s notice – again this should have only been paid if they were willing to work it. So in the circumstances it is unlikely that they have a claim for the longer notice period, purely due to the fact that they were not available to work during that period.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.
Thank you for the information. Would there be any circumstances where it is likely they would have a claim against not working the notice period? They are taking the company to employment tribunal regarding breach of contract for the claim they passed their probation period and paid insufficient notice, however I now see it that the resignation without notice now overrides this?
Expert:  Ben Jones replied 2 years ago.
Thank you for your response, which I will now review. I will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Expert:  Ben Jones replied 2 years ago.
Hello again, I do not see how they would claim here. They are claiming that they were not being given sufficient notice period but to get that they would need to actually work that notice period. So the fact that they resigned without notice before you even mentioned anything about a notice period means that they have forfeited that right.
If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Expert:  Ben Jones replied 2 years ago.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether you need further help or if I can close the question? Thank you