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Odd situation with contractual notice period

Discussion in 'General Discussion' started by PMKeates, 8 Mar 2010.

  1. PMKeates

    Capodecina

    Joined: 16 Jul 2004

    Posts: 14,052

    I have a slightly odd situation with regards to my contractual notice period that I'd like to garner people's opinions on (educated or not).

    The notice clause in my contract is:
    Now, the pedants amongst you will have instantly noticed that the clause contradicts itself.

    If you follow the wording for, say, 4 complete years of service:

    One month until you have been continuously employed for two years
    Thereafter, notification entitlement increases by one week for each year of continuous employment

    Therefore for 4 years employment, notice = One month + two weeks

    However, it goes on to say that entitlement increases until you have completed 12 years of service, by which point your notice period is 12 weeks. That final condition doesn't fit at all with the rest of the clause. The initial entitlement of one month for two years is never revoked or converted to weeks, and the notice period specifically increases after that point.

    Now, many of you will also know that the final condition is very similar to the statutory terms. The company have argued that the clause had intended to mirror the statutory terms but was worded incorrectly (I of course didn't agree). The company have now offered to give 6 weeks notice. This is 0.33r weeks less notice than I feel I am entitled to.

    Is it worth arguing over this contractual clause for the sake of a third of a weeks' pay?

    Does anyone have any experience with contradictory contract clauses?

    Am I best off taking the offer?

    Over to you OcUK! :p
     
  2. silversurfer

    Capodecina

    Joined: 13 Jul 2004

    Posts: 19,326

    Location: Stanley Hotel, Colorado

    4 years would be 1 month for your first two years then an increase of 1 week for the two years served there after so thats a total of 6 weeks

    Im not sure about your point about being there 12 years. I wouldnt bother arguing personally unless your union agrees on some sort of general principle
     
  3. PMKeates

    Capodecina

    Joined: 16 Jul 2004

    Posts: 14,052

    A month isn't four weeks - and I'm pretty sure I've read a regulation specifically stating that a "month" is a calendar month, therefore one's salary divided by 12 in these cases.
     
  4. PermaChanged

    Mobster

    Joined: 19 Jan 2006

    Posts: 4,036

    My interpretation of it would be that you are entitled to 6 weeks notice period, assuming you've worked there for 4 years which you don't actually state?

    If you had worked 10+ years then I would imagine you would have a case.

    EDIT: Seems I've missed the point, are you disputing that 1 month should be 31/30 days not 4 weeks?
     
  5. PMKeates

    Capodecina

    Joined: 16 Jul 2004

    Posts: 14,052

    Yup, Rusty_Noob - that's it. I am disputing that a month should be a calendar month, and so for any calculations should be calculated as salary / 12.

    In reference to the slightly ambiguous contract, I've heard that in these cases employees have the benefit of ambiguity. Does anyone know this for sure?
     
    Last edited: 8 Mar 2010
  6. Bear

    Capodecina

    Joined: 24 Oct 2002

    Posts: 13,047

    Location: Bucks and Edinburgh

    The 12 week thing is just a legal entitlement. Notice period is one week for every year worked up to a maximum of 12 years, that is covered in law aside from contractual notice. It is just that your contract has covered that point.
     
  7. PermaChanged

    Mobster

    Joined: 19 Jan 2006

    Posts: 4,036

    I agree, you should be getting one month + 2 weeks judged on the wording of your contract. Salary / 12 + Salary / 52 x 2.
     
  8. silversurfer

    Capodecina

    Joined: 13 Jul 2004

    Posts: 19,326

    Location: Stanley Hotel, Colorado

    In that case yea I guess you are owed another 2 days over whats being offered. If you get paid monthly anyway not weekly it definitely seems a reasonable argument
     
  9. Gaidin109

    Mobster

    Joined: 12 Jul 2009

    Posts: 4,878

    It would be pointless to argue for such a small gain (if you win), The amount you are entiltled to seems quite straight forward and to argue over whether a month is a calender one or one based on the amount of days is a bit of a stretch.

    You obviously get paid by the calender month (I would assume) so the first part of the clause is self contained in that it states one months notice is required until two years service is complete. The second part of the clause can be argued to be separate to the first in that the company state clearly that for each year of service you will be entitled to one weeks notice. It doesnt state that it automatically follows on from the month you were entitled to during the first two years of service. I agree it is ambiguous and poorly worded, but I can't see you winning any case you may bring because of this.

    It is common practice to pay a month as four weeks when using this system.
     
    Last edited: 8 Mar 2010
  10. silversurfer

    Capodecina

    Joined: 13 Jul 2004

    Posts: 19,326

    Location: Stanley Hotel, Colorado

    How do we know its small gain. He might be on 100k a year in which case I'll take a new cpu as my cut for this advice :)
     
  11. Dave M

    Soldato

    Joined: 17 Oct 2002

    Posts: 5,537

    I'd be more concerned that it states you get 4 weeks at 2 years, and then you acrue 1 week per year for a further 10 years - that makes 14.
     
  12. Gaidin109

    Mobster

    Joined: 12 Jul 2009

    Posts: 4,878

    Good point, but it can be seen to give one months notice plus a week for each subsequent year until 12 years service when it reverts to 12 weeks notice. this could mean that at 11 years service you would be better off than at 12.

    The OP though, are you going to get paid for one month, plus the 2 weeks, or are you going to get paid for 6 weeks?
     
  13. Nitefly

    Man of Honour

    Joined: 24 Sep 2005

    Posts: 33,992

    Year 1: One month
    Year 2: One month
    Year 3: One month + 1 week (~5 weeks)
    Year 4: One month + 2 weeks (~6 weeks)
    Year 5: One month + 3 weeks (~7 weeks)
    Year 6: One month + 4 weeks (~8 weeks)
    Year 7: One month + 5 weeks (~9 weeks)
    Year 8: One month + 6 weeks (~10 weeks)
    Year 9: One month + 7 weeks (~11 weeks)
    Year 10: One month + 8 weeks (~12 weeks)
    Year 11: One month + 9 weeks (~13 weeks)
    Year 12+: 12 weeks

    There is nothing contradictory in the language of the clause. It has been drafted so that you get more time in year 11 than the later years - this was probably a mistake.

    It's really not a big deal IMO. You are contesting about a weeks notice post 10 years employment. You don't even know if you will be there for 10 years and even then, it's negligible in the grand scheme of things.
     
  14. Dave M

    Soldato

    Joined: 17 Oct 2002

    Posts: 5,537

    The Statuatory notice is 2 weeks at 2 years then 1 week per year until 12 years (a maximum of 12 weeks).

    They've obviously decided to modify that to give 1 months notice after 2 years in their contracts but carelessly not modified the statuatory text to account for the 11th and 12th year of service.

    Noobs.

    The weeks vs months thing is just a legal definition - you wouldn't get anywhere with it.
     
  15. wonko

    Wise Guy

    Joined: 21 Jul 2008

    Posts: 1,478

    Location: Outside the asylum

    Is there a risk of the employer withdrawing the job offer because they felt you were showing signs of being awkward or argumentative over a trivial point? This would seem worse than having 2 or 3 fewer days to find a new job if they ever did terminate your employment.

    I agree the clause isn't worded too well though. I'd view it as how long would I have to find another job? Looking at it from a 'how long before the pay stops?' point of view seems a bit negative.
     
  16. PMKeates

    Capodecina

    Joined: 16 Jul 2004

    Posts: 14,052

    Firstly, thanks for all the replies.
    I think you sort of change your mind later on, but it does specifically say that "Thereafter, notification entitlement increases by one week for each year..." etc.
    They are proposing six weeks. I am throwing out to OcUK the possibility of arguing one month + two weeks (6.33r)
    True... I suppose it isn't so much a contradiction as a very odd clause.
    I'm with you on the "noobs" thing - they've clearly screwed up. In terms of weeks vs months, I think the very point that they both have very clear legal definitions gives the argument for 6.33r weeks some legs.
    Ermm, soon I'm going to be being given my notice, so I'm not overly fussed about them withdrawing the offers they've made! :p
     
  17. Ring Peace

    Gangster

    Joined: 23 May 2005

    Posts: 387

    Seems to me they just stuffed that clause in the contract, I would imagine that month should be saying week, unless you work in an industry where people don't stay long and one months notice would be an incentive to employees.

    Oh and one month != four weeks, get your extra days.
     
  18. PMKeates

    Capodecina

    Joined: 16 Jul 2004

    Posts: 14,052

    It's a relatively complex situation, but I work for a company that was purchased by another one around 18 months ago. They have decided now to close it down.

    The other company's terms are four weeks notice up until four years of service and then an additional week for every year of service up until 12 weeks. So, similar in the years one and two but less advantageous after two years:

    2 years = 4 weeks
    4 years = 4 weeks
    6 years = 6 weeks
    12 years = 12 weeks
    14 years = 14 weeks
    And yes, I think I will. I will wait until the terms of the redundancy are just about to be settled (in order for this not to impact any efforts the company may make before) and then demand the 0.33r weeks.
     
    Last edited: 8 Mar 2010
  19. wonko

    Wise Guy

    Joined: 21 Jul 2008

    Posts: 1,478

    Location: Outside the asylum

    Ah - many apologies, I read the "taking the offer" bit and obviously jumped to completely the wrong conclusion. Note to self: must read posts more carefully before replying.

    On the off-chance that you are being paid-off and not expected to work through your notice period then have a read up on PILON (Pay In Lieu Of Notice). IIUC, your employer can offer to give you a sum equal to your notice period salary as compensation for breach of contract (not letting you work the notice period), which up to certain limits is tax free. It doesn't cost the employer any more but would need their cooperation/agreement.

    I hope it all works out to your advantage.
     
  20. PMKeates

    Capodecina

    Joined: 16 Jul 2004

    Posts: 14,052

    As you can imagine from the bad wording of the notice clause, there's a few PILON-impacting clauses that are making things difficult. From what I know, the company have raised the suspicious of the tax office before now, and so are being very careful not to break any rules. They have said they are investigating how they can make our notice payments tax free, but we'll have to see how that goes.

    One of the reasons I don't want to throw the 0.33r weeks thing in their face at the moment, is in order to not squash any endeavours to find a tax-free route for the notice payment. Once that has been confirmed, I will let them know I want those 0.33r weeks.