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Notice periods

Discussion in 'Workplace dilemmas' started by oscillator, Oct 19, 2016.

  1. Rott Weiler

    Rott Weiler Star commenter Forum guide

    .
    That is not true.

    That is not true either.

    In certain circumstances it might be possible to challenge a notice period in court as @GLsghost indicates, but in general there is no law saying what you claim @blazer
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    Last edited: Oct 21, 2016
    GLsghost likes this.
  2. ValentinoRossi

    ValentinoRossi Star commenter

    That's new to me (though I would like it to be true!). Is this legal?

    I'm getting a bit confused here. I had always assumed that, having signed a contract, I would be agreeing to the restrictions therein. Is this not right?
     
  3. sabram86

    sabram86 Occasional commenter

    I faced this issue myself recently. Having been recently employed by a private school, I was without a formal contract but I wanted to resign, so I looked into the matter.

    In the absence of formal, agreed terms found in a contract (or, for state schools, the Burgundy Book perhaps), or some implicit agreement between the parties as to notice terms (highlighted perhaps in the formal offer, verbally or otherwise), the Employment Rights Act 1996 takes effect by default. This requires a week's notice after one month of employment for every year of employment (e.g. an employee having served eight years would have to give eight weeks' notice). Payment in lieu of notice is an option for the employer, if they wish to dispense with your services more quickly, for whatever reason.

    I relied on this with a certain amount of confidence and things, for me, worked out fine. I offer a week's notice and the school gave me payment in lieu of notice. I walked out the day I gave notice. A sad day, but carrying on would have crucified me.

    And before people start saying you should contact the union, I did and they never got back to me. The ********!
     
    midnight_angel likes this.
  4. GLsghost

    GLsghost Star commenter

    You are bound by the terms of your contract. It may be possible to argue that a particular term is so onerous and unfair that you should not be bound by it.
     
  5. GLsghost

    GLsghost Star commenter

    Quite right. In the absence of any contractual provision, the default position is the statutory one, as you have described.
     
  6. oscillator

    oscillator Occasional commenter

    My school has told me that a job description is a contract (even though it does not fit my role or my job title). I will have to print out from that previous link to highlight the discrepancies.

    I still feel dumb for assuming the two terms could not possibly apply! but it sounds like my head is open to discussion...
     
  7. GLsghost

    GLsghost Star commenter

    Your school is wrong - for all the cumulative reasons summarised above.

    Is your union onto this properly now?
     
    midnight_angel likes this.
  8. oscillator

    oscillator Occasional commenter

    Half term... both Heads are now on half term. They deserve a rest too!

    I have a meeting with my current head Monday next week. I will gauge her mood, but think it will be fine. Regional union rep has said they will give the current head a ring, but I want to see what she says in this meeting. I am happy to remain silent, but I will bring my many evidences of incompetence...

    Union Rep said to gather all the evidence of my asking for a contract, which is what I will do. I asked two times in meetings, and I think two other times via email. Will try to get the meeting minutes! However, I am aware that the school is required to ISSUE a contract, not that I have to keep reminding them to give me one...
     
  9. FrankWolley

    FrankWolley Star commenter

    And, remember, that you have the option of saying, quite simply, 'I won't be here in January'.
     
    midnight_angel and Geoff Thomas like this.
  10. oscillator

    oscillator Occasional commenter

    My concern with that is what will my new head think? I would hate to lose the positive reference from this job needlessly, and I would hate the new head to think negatively about me too!
     
  11. FrankWolley

    FrankWolley Star commenter

    If you weren't given a contract stating that you had to give 2 terms notice, then you are free to leave (assuming you resign by 31 October). Check with your new Head if you want, but unless they tell you to wait until Easter or late, then I'd go at Christmas.
     
  12. Piranha

    Piranha Star commenter

    My understanding is that these periods are minimums for when the employer is giving notice. The legal requirement for notice by the employee is a minimum of 1 week if the person has worked there for at least a month. That being said, either of these can be extended (but not shortened, I believe) in the contract. All this is my interpretation - I avoid making definitive statements about things I have not studied in sufficient detail. Too many inexpert, or just plain wrong, opinions are expressed as facts.

    One thing I have never quite got my head round is the fact that a written contract can be given to an employee up to 2 months from them starting work, but clauses in it can be enforced even if they have not seen it. A teacher under Burgundy Book/STPCD knows where they stand, but not people employed under different terms. In terms of notice, it may revolve around whether the notice period is reasonable, but how do we define that? I can't believe that the Burgundy Book provisions are the default for teachers in the private sector who haven't seen their contract yet, or that the frequency of salary payments has anything to do with it.

    Of course, in many cases, the employer will consider it not worth their while to try to enforce a noticvce period; this does not mean that it has no standing in law.
     
    Rott Weiler likes this.
  13. Rott Weiler

    Rott Weiler Star commenter Forum guide

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    I would recommend you do not bring up any issue other than notice period. Keep the focus on notice period, bringing anything else in to it will complicate the meeting and probably make it less likely that the head will agree to your request.

    Accusing the head of incompetence will likely get them looking for "evidence" of your incompetence, or so they will claim. Countless posts on TES attest that that's a situation that rarely ends well for anyone.

    I'd keep emphasising that you have never been advised of any contractual notice period. Produce all the documents you have been given. Draw attention to head's email etc that this is the whole of your contract. Politely point out that there is no mention of notice periods anywhere in the documents.

    You could also point out (or better your union rep points out) that if there is no contractual notice period then statutory notice periods apply. Which for you would be one week! Not of course that you are planning to leave with such short notice as long as there is agreement by all parties that you can leave from (and be paid up to) 31st December........ Stick with that as your negotiating objective.

    See ACAS guidance on statutory notice periods here. An earlier post suggested that statutory notice period increased by one week for each year employed (to max 12 weeks) but ACAS say that's for the notice an employer has to give if they want to dismiss. For an employee resigning it's one week, never more.

    This may have been asked before, does school have a staff handbook or similar that it gives to all staff, or puts on a staff shared drive or something like that? If so does that mention notice periods? If so school might say (if head has taken HR advice now) that the staff handbook forms part of your contract of employment. Whether they could make that argument in your case I don't know, your union rep will need to advise you if it comes up. For one thing they would have to have drawn your attention to it in writing, not just left it in a cupboard in the staff room and hope you might have stumbled across it!
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    Last edited: Oct 25, 2016
  14. GLsghost

    GLsghost Star commenter

    Not the written contract but the written statement of the terms and conditions contained within it. There is a subtle difference.

    The contract was formed when the agreement was made - an offer made on terms capable of being accepted and an acceptance made. Since terms cannot be incorporated retrospectively, the parties - in theory at least - should have been aware of all the terms contained in the contract at the point that the offer was accepted.

    Terms therefore are capable of being enforced, even before the s1 written statement is issued. The difficulty of, course, at that point, is proving that the term exists.

    On the facts of each individual situation. Generally contractual terms are deemed to have been agreed by both parties. It is recognised that there is a power imbalance between employer and employees. An individual term would have to be shown to be unreasonable and unfair, but it may have to be argued as such.

    If a notice period is so onerous that it effectively prevents a teacher from gaining a new job, it may be deemed unfair. If you were trying to argue that, I would be suggesting evidence of vacancies and showing how few jobs are available to someone having to give a long period of notice. It's different for Headteacher posts, which generally are advertised a long time in advance, giving candidates chance to give long notice.
    Me too.
    Yep.
    - I have never been given a contract, despite asking
    - I have never been shown a contractual notice period
    - I have never been given an s1 written statement of the T&Cs in the contract
    - you cannot attempt to introduce a contractual term (notice period) retrospectively
    - the default position is the statutory position

    If contractual terms are contained elsewhere (e.g. in a staff handbook) it must say so in the s1 statement.

    But the OP doesn't have one... It can only form part of the contract of employment if there is a term(s) to that effect. Where is the term that says the handbook is part of the contract?
     
    Rott Weiler likes this.
  15. oscillator

    oscillator Occasional commenter

    By incompetencies... I meant lack of terms of contract/ available staff handbook (the only policies available are not relevant to the teachers but more to the parents, pupils etc..

    I am not sure it is entirely relevant, but I have now seen a job description given as contract to another teacher where a one term notice period is expected... I will take stock during the meeting if this becomes prudent to mention.

    I was (and still am) only intending on discussing notice period and contractual issues!

    In other areas, actually, my current head does strike me as quite competent overall!! I expect she is being strangely advised on the matter of contracts etc...
     
  16. GLsghost

    GLsghost Star commenter

    NO! :)

    Another person's contract is not YOUR contract!

    Stick to what you were not given and not told. They cannot impose a term retrospectively. It has no effect in law.

    In the absence of any express contractual term, it was reasonable of you to presume that the standard notice period for a teacher applied. If you want to be pedantic, in the absence of a contractual notice period, the default position is the statutory one.

    The attempted imposition of a two-term notice period is not only unreasonable and unfair, it is almost certainly unenforceable. You have given more than enough notice to terminate your contract at Christmas and your employment WILL cease on 31 December.
     
    FrankWolley likes this.
  17. Piranha

    Piranha Star commenter

    I was hoping that you might pop up with an answer to my questions, @GLsghost, so thanks. I have often wondered about the point you raise here, which has come up before when somebody has accepted a job without salary being mentioned, and the concensus has been that a verbal contract has been made, so the person concerned can't back out of it when a lower than expected salary emerges. My view of fairness (not the same as the law, I know) is that the contract should not be binding until key points such as salary, sickness benefits, pensions, notice periods etc have been given to the prospective employee.
     
  18. wanet

    wanet Star commenter

    Which is why you should never accept a position without this being clarified. And I believe any decent school should now do this as standard.
     
    Piranha and midnight_angel like this.
  19. GLsghost

    GLsghost Star commenter

    The underlying principle is that a contract is a private agreement between two parties and the courts should not interfere unless there is obvious injustice. The law does not prevent parties from making a bad bargain, which generally it views as a private matter.

    The situation has evolved in respect of employment contracts, to take account of the imbalance between the power of clout held by employers and employees, which is why there is so much legilation aimed at affording the employee protection.

    The basic principle still applies, however, that parties should make representations about the terms of the contract before an offer is made. An offer should then be made on the basis of the negotiated terms and must be accepted on that basis. There is no right to vary the contract once made, except by mutual agreement. In practice, many parties will happily negotiate details afterwards - but there is no right to do so. Whatever is in the agreed contract is what binds both parties.
     
  20. oscillator

    oscillator Occasional commenter

    Weird day. Told I could not leave at Christmas by the head teacher at 9am. Then, head teacher announced in staff meeting in the afternoon that I was leaving at Christmas.

    Perhaps there is more to the story - but I think I know everything I need to!
     
    Piranha likes this.

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