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Imagine working at a company that handles sensitive data such that when people are dismissed or resign, they are immediately sent home on gardening leave.

If your contract states you can be dismissed at any time with 1 months notice, but if you resign you have a 3 month notice period, if you resign (and thus they must pay for 3 months) can they immediately dismiss you to avoid paying the extra 2 months?

Assume you have been working there for less than 2 years.

  • Not unless they have valid reasons to dismiss you. – Snowlockk May 12 '17 at 14:25
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No, this would be considered unfair dismissal.

As per: https://www.gov.uk/dismissal/unfair-and-constructive-dismissal

Your dismissal could be unfair if your employer doesn’t:

  • have a good reason for dismissing you
  • follow the company’s formal disciplinary or dismissal process (or the statutory minimum dismissal procedure in Northern Ireland)

Situations when your dismissal is likely to be unfair include if you:

  • asked for flexible working
  • refused to give up your working time rights - eg to take rest breaks
  • resigned and gave the correct notice period ...
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1

I am not a lawyer but I have successfully argued in court to have an asymmetric contract term overturned as unfair, getting me the several thousand pounds in back pay and compensation that I was claiming but that was as a contractor, not an employee.

If it came down to it, you would really to seek legal advice - there may be reasons that the clause is fair in your circumstances, only a good lawyer could tell you.

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While this sort of thing is possible, it's unlikely. First, in almost all employment contracts the notice period is the same on both sides. Second, if the company did this sort of thing word would get around very quickly, resulting in a lot of employee dissatisfaction. Also companies rarely do this if they habitually take a 'gardening leave' approach. It doesn't pay them to have a long notice period if all they are going to do during it is pay you for not working.

If you believe you might be in this position, there is an easy way to deal with it, at least assuming that your intention is to move to another job. When the next job asks when you can start, say that you technically have to give three months notice, but you might be able to start in a month. Accept a start date in three months time, and if they fire you then call up the new company and say you can start early. They will probably be happy about that.

Incidentally it is often possible to negotiate down a long notice period. If you have another job to go to, and you are given three months gardening leave, go to the company and say you will take a month's pay instead of 3 months if they will let you start the new job immediately.

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If your contract states you can be dismissed at any time with 1 months notice, but if you resign you have a 3 month notice period, if you resign (and thus they must pay for 3 months) can they immediately dismiss you to avoid paying the extra 2 months?

This is what's called Garden Leave. Yes in principle they could dismiss you, the likelihood is that you will be paid for the time, and technically employed, but are at home.

The reason this is more likely is that the time period is for the employers benefit. When there are sensitivities, if you are three months away (as in your example) your usefulness in leaking info/data is decreased.

Firing you immediately (even with some kind of non-disclosure), is likely to backfire on them (and suing after the fact if you do disclose may have less value than stopping the damage by keeping you on the payroll).

The main point to remember is that you are employed during garden leave, so you shouldn't be moving into another role and celebrating your windfall of pay until you formally finish.

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If your contract has indeed two different notice periods, then they could fire you as soon as you give your three months notice. There would be the usual problems for the company (they cannot just fire you without some good reason and resigning wouldn't be a reason).

But in principle, that problem is solved by nobody accepting contracts with that kind of asymmetry. I have never ever seen a contract being offered where both sides had different notice periods. It might be that such a contract would be illegal, it is certain that I and most other people would never accept it.

Now what they can do quite legally: They can offer the employee a choice, either work three months and get paid three months, or getting one months pay and leaving immediately. What would you prefer, three months paid work, or one month paid holiday?

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  • I posted this on behalf of someone that has this exact contract – NibblyPig May 12 '17 at 12:45
  • @SLC But I wonder who designed such a contract for what purpose. As outline in your question, there is really no benefit for the company in such a case. – dirkk May 12 '17 at 13:07
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    This is incorrect for the UK. If you resign and then your employer dismisses you to avoid paying notice, it is an unfair dismissal. – toadflakz May 12 '17 at 13:30
  • @toadflakz: It might be unfair dismissal, but you'd have to fight the company. Better to avoid this in the first place by not having it in the contract. – gnasher729 May 12 '17 at 13:55
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    @MSalters: If you give three months notice today, that means you put the company on notice that you will resign exactly three months from now. The contract is still valid for the next three months. – gnasher729 May 12 '17 at 15:18

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