Am I entitled to payment in lieu of notice during probation period?

Question

I started my 3 month probation period on 7th January, it ends in April.

I received my 2nd pay on 24th February which was paid up to 28th February. I was off sick on 11th February following my first covid vaccine and returned to work on 12th February. My wage slip showed that I'd been paid for 11th.

I emailed my resignation on 25th February due to my struggle with arthritis pain, but told them I am happy to work my 1 week notice. I work shifts and was due back in on 28th.

My employer replied and told me that instead of working my notice and if I transfer back the payment made for 11th when I was off sick, which they say was an error and pay back the shift due to be worked on 28th, they would then end my contract with immediate affect.

I replied and agreed to this, not really understanding what my rights are.

As they asked me not come back in, shouldn't I be entitled to Garden leave? And should I transfer money back to them for 11th and 28th February?

Could anyone please advise?

Answer 1

You gave one week notice. It seems they offered that you leave instead with zero notice, and you accepted that. You didn't have to accept it, but you did. That seems was a mistake on your side, but it's done now.

The company has to pay for every day you worked. For the 11th, they have to pay either statutory sick pay, or what your contract says. They can't just ask for the money back. Obviously you received pay for the 28th that you shouldn't have received. But then you have worked for almost two months, so you will have accrued 3 to 3 1/2 days of holidays, and they need to pay for that. So the company will still owe you money. They don't have to pay immediately, they can wait until their next normal payroll (so end of March).

About gardening leave / payment in lieu of notice: If you give the notice that you have to give due to your contract or due to law, and the company doesn't want you to work after you gave notice, then they have the choice of sending you home while still paying you (gardening leave), or cancelling your employment immediately and paying you your salary for the notice period (payment in lieu of notice). But if you made the mistake to agree to an earlier finishing date, you won't get this money. But many/most companies will want you to work for the notice period.

Answer 2

As they asked me not come back in, shouldn't I be entitled to Garden leave?

In short - no. If you're willing to work the notice period but they don't want you to then they can't unilaterally shorten your notice period to get out of paying you for it - but that isn't what they've done. The notice period can be altered by mutual agreement - and they offered an alternative arrangement (Don't work notice, don't get paid) and you agreed to it. Therefore everthing regarding that is above board, you don't really have any scope to go back on that now.

And should I transfer money back to them for 11th and 28th February?

The 11th is a grey area here - check what your contract/employee handbook has to say regarding sick pay. If you were entitled to be paid for that day then you don't have to send them the money back. On the other hand if it was a genuine error then they are well within their rights to ask for it back, and you should comply.

The only thing that's worth checking re: the 28th is that you may be entitled to some pay for accrued annual leave entitlement. You mention you did shiftwork so you might have to do some checking to see how much you will have accrued but there's a handy calculator here - assuming you haven't used any you may have accrued enough able to claim that to offset the 28th. If there's no available annual leave entitlement though then that too will be classed as an overpayment and you will have to return it.