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Asking for a colleague, I’d like to sanity check my understanding please, which is...
If an employees Contract hasn’t been updated, yet they’ve taken on on various different other roles and pay since the time the contract was signed, my understanding is that it’s fair and perhaps legal to stay that the notice period in the original contract defaults to the statutory requirement.
E.g. if the original contract now say 4 years old has a 3 month notice period, said person could legitimately today offer one months notice on the basis it hasn’t been contractually set for the new role, the new role isn’t represented by the old contract and yet one month is the general recognised requirement in fairness.
Is that right?
Hmm, invisible thread???
As ever it depends, usually how key the person is to the business / how difficult they are to replace will dictate what the employer will do as much as the contract. Technically the contract is between the employer and employee and not dependent on the role so much but enforcing notice periods generally doesn’t end well on either side of the employee really wants to leave, so there is a negotiation. So much also depends on the employee and their move - going to a competitor? Superstar employee or glad to see the back of him (I’m sorta joking here about your friend).
E.g. if the original contract now say 4 years old has a 3 month notice period, said person could legitimately today offer one months notice on the basis it hasn’t been contractually set for the new role, the new role isn’t represented by the old contract and yet one month is the general recognised requirement in fairness.
That's seriously long sentence. Wanna try breaking it down a bit
Kryton, whatever is in the contract, that's the only legal basis for both sides, think of it in reverse, if the company was making your friend redundant, contract says 3 months notice, employer goes no, you've changed roles a couple of times with our blessing, contract defaults to statutory, your friend would be livid and out of pocket.
In reality notice periods are the one half decent employment protection an employer can't really wiggle out of from their side or in most cases realistically enforce from the employer side.
A contract signed only four years ago would still carry weight legally, especially on issues like notice periods. I'm guessing this person is still important enough to the business that they think their boss is likely to try to enforce it.
Either way, any argument which involves selectively setting aside terms from your current contract seems a lot harder work than just sitting down and negotiating a notice period that suits both parties.
A contract signed only four years ago would still carry weight legally, especially on issues like notice periods. I’m guessing this person is still important enough to the business that they think their boss is likely to try to enforce it.
Yes this.
In reality notice periods are the one half decent employment protection an employer can’t really wiggle out of from their side or in most cases realistically enforce from the employer side.
My next bit of understanding is that over 12 years services (he's been there 15 years) the statutory employer given notice grows to 12 weeks?
That’s seriously long sentence. Wanna try breaking it down a bit
He has an old contract, and wonders whether that because he has changed roles several times without a new contract to reflect that, that the notice period from the old contract is enforceable by law, or that legally he can assume the statutory notice period on the basis the contract no longer reflects his role. Basically he wants to leave ASAP and isn't sure what start date he can discuss with his new employer.
Notice period is an express term so it's set in writing, in this case 3 months. It can't be implied that he has a different contract because he's changed role
Presumably his new role was a more important/valuable. I'm a workshy barrack room lawyer and even I would struggle to keep a straight face arguing that. And might burn bridges if negotiation is required.
He has an old contract, and wonders whether that because he has changed roles several times without a new contract to reflect that
The time to vary his contract was at the point his duties changed. Trying to change it now (or arguing he isn't under contract at all) to disadvantage his employer at the moment of his leaving is not justified, and is going to piss off more people than simply negotiating for less notice.
In addition, there doesn't seem to be a compelling reason why any employer should accept a reduction in notice - if anything, he's more important now than when he signed up, given his longstanding. This line of attack could make his boss less flexible about it.
I would assume the contract will overrule anything else.
I'm at the other end of the scale. My contract is 19yrs old and states 4 weeks notice but nobody in my position would expect less than 3 months notice. However my contract clearly states 4 weeks. We've been bought out twice in that time and are about to be bought again but my contract of employment has never been updated to reflect any of this. Which is a bit crap as it does not protect me or the company.
I would think that the 3 months notice is there as he's mildly important and that he needs to ensure a successful handover of his projects etc.
I’ve had contracts that specified me giving 3 month’s notice but I successfully managed to negotiate one down to 6 weeks based on some specific objectives.
If the OP’s colleague hasn’t had a new contact issued then the original terms should stand.
If the OP’s colleague hasn’t had a new contact issued then the original terms should stand.
+1
OK, that seems to be the consensus then, thanks for the info. I think the best he can hope for is he's offered gardening leave out of it, which is likely. But he needs to tell his new employer he won't be starting until August...
If the OP’s colleague hasn’t had a new contact issued then the original terms should stand.
With one caveat, in that the specific terms relating to role, remuneration etc have been varied by consent/implied variation between the parties to reflect the new role/duties.
The core of the contract remains as agreed between the parties absent express agreement to the contrary.
Generally agree with the above. The terms are negotiable though. I shortened my notice period on the back of being able to handover in the available time. I was on 6 months. Generally that was only in for key researchers incase we went to a direct competitor.
I'm now on 1 week at the new place!
You can usually negotiate. If it is someone in a more responsible position then they often want to be able to call up to get info that wasn't handed over properly. Similarly new companies once they have found someone would usually rather wait a bit than start looking again. We continually have people leave and end up giving shorter notice than they need to as it doesn't really help to enforce it
OK, that seems to be the consensus then, thanks for the info. I think the best he can hope for is he’s offered gardening leave out of it, which is likely. But he needs to tell his new employer he won’t be starting until August…
In most cases employers expect this (assuming he's at a level where 3 months is normal). They might try and push him to negotiate an early exit - but you just say "my current employer is being really difficult as they don't want me to leave". We did have one guy who fed us that line and then when he started it slipped out he'd actually left after 2 months and spent a month enjoying the time off... I'm not sure that did his credibility any good.
Gardening leave is only common if its a competitor (and then to be clear he can not start work for the new place until it ends) but many employers will take a pragmatic view that (1) if you want to go you are probably not that useful / productive anyway; (2) if you are "held against your will" you are potentially destructive; (3) it can be better to agree a programme of activities/handover tasks which IF COMPLETED let you leave early; (4) will know its almost impossible to force someone to work notice - our lawyers told us we basically can't even refuse someone a weeks holiday (and pay it in lieu) during their notice period as they can just call in sick and there's not much you can do - and he hadn't delivered everything that was agreed!
Even if the contract were out of date (which as others have said, isn't how it works) it would seem unlikely that he'd have taken on more roles and more pay and seen a reduction in notice period.
My next bit of understanding is that over 12 years services (he’s been there 15 years) the statutory employer given notice grows to 12 weeks?
Kinda, but not quite. Statutory notice for the employer is is a week per year capped at 12 years - ie, 12 weeks' notice - aside from the first couple of years which is a bit weird and I'd have to look it up, and it's irrelevant here so I can't be arsed. Statutory notice for an employee is only a week, however of course the actual notice period is whatever you've agreed to.
There are likely ways around this. If he were to just give a month's notice and go 'I'm off' then it's highly unlikely they'd bother pursue it further (but they could of course). He could speak to his boss and go "any chance we can wiggle on this?" - after 15 years' service they might feel like doing him a favour unless he's critical to the business and it'll genuinely take three months to recruit and train a replacement.
But the right thing to do is work it. Longer notice periods are more common these days especially for more senior roles, the days of "can you start on Monday?" are long gone. Someone offering him the job will understand (and I'd question whether I'd want to work for someone who didn't) and indeed it'll reflect better on him.