Contractors' Questions: Are hospital visits cause to cut my notice period?

Contractor’s Question: I’m working out my notice period with just one week to go. But I’ll be taking off the last two days -- with no expectation of pay -- due to hospital appointments for knee surgery.

My hiring manager says this time out breaches my two weeks’ notice period and, despite me starting a new contract elsewhere next week, he wants me back for two days. He claims the handover isn’t complete.

I’ve assured him it is and said I’ll be on Skype/email for the two hospital days, but I cannot get out of the appointments. Do I have to work these two days -- can he hold me to them?

Expert’s Answer: I assume (but do check) that your contract requires you to work each working day.

On this basis, taking time off without consent (including during a notice period), for whatever reason, would, on the face of it, appear to be in breach of contract.

Now, it would be open to you and your engager to agree terms on which they would consent to you taking that time off -- and such terms might include your agreement to work two days next week instead.

However, if you and your engager don’t agree such terms, and if your engager does not agree to you taking the time off, then, as I say, you would appear to be in breach.

But does that matter? The ‘victim’ of a breach of contract is entitled to be placed in the position in which they would have been, had the contract not been breached. But the innocent party also has a duty to mitigate its losses -- i.e. to take reasonable steps to keep such losses to a minimum.

You and your engager seem to disagree over whether or not your handover is complete, and the implication seems to be that if the engager agreed that the handover was complete, there would be no objection to your taking the last two days off.  

In the real-world, given that you do not expect to be paid for the two days you will not be working, and given your offer to be available for consultation next week by Skype/email, I suspect that there is very little that they could -- or would -- do about it.

The expert was lawyer Roger Sinclair, legal consultant at contracts advisory egos.

Editor's Note: Related --

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