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Notice Period Query? – Employers 5 Common Questions Answered

Date 13 Nov, 2018 |
By: Claire Malley

Notice periods, contractual and statutory rules, effective dates, and the giving and receiving of notice can be a very complex area of any employment relationship. It relates mainly to issues surrounding a termination of employment and in that sense can often be a contentious and negative subject. Read our roundup below of the 5 common questions and Employment Law guidance in relation to notice period issues.

1. What action can be taken if employees don’t work their contractual notice period?

This seems to be the main question that crops up frequently in relation to notice periods and a source of great frustration. If an employer dismisses an employee without giving proper notice, the employee could bring a claim for wrongful dismissal (breach of contract) or more commonly, an unlawful deductions claim. The damages recoverable will be the pay and other benefits that would have been accrued during the notice period.

But if it is the other way round, and the employee doesn’t give notice, what can be done? It appears to be common in certain industries that employees simply disappear leaving an employer without cover and the resulting implications are clients being let down, stress being put on remaining team members who have to pick up the work, critical work not being completed, amongst other damaging repercussions.

The employee has breached their contract so a claim for damages could be pursued but in reality it will be difficult in most cases to be able to evidence the actual losses that have been experienced and the cost of court action will far outweigh the loss.

You may be able to make a deduction from final pay to cover actual financial losses but as with any deduction it will carry risks, there has to be a provision in the contract and prior consent has to have been given for the deduction, the amount deducted has to be a genuine pre-estimate of loss and cannot act as a penalty. This may sometimes act as a deterrent.

Another option is to write to them and remind them of their contractual and legal obligations and they may have second thoughts. The hope is that if you recruited the right person in the first place they should appreciate the necessity of honouring their notice period but the reality is that once someone has decide to leave they will have disengaged and you cannot force an employee to work their notice.

2. What notice period should be agreed in the first place?

This is dependent on the role in question, you should consider what is reasonable and appropriate for the position, taking into account factors such as how long it is likely to take to recruit a replacement, what period of handover may be required to ensure all training is covered once you have someone recruited.

Usually more highly skilled or management roles will have longer notice periods for these reasons. Asking for an unrealistically long notice period for a junior role for example will likely mean you are left with a problem as outlined in point one where an individual would not honour it, the next employer might not be willing to wait for them (whereas in a more senior role it would be more likely expected an accepted).

3. What happens if the employee has never been given anything in writing confirming their notice period?

In the absence of a written statement of particulars, or anything verbally agreed, there is a statutory minimum that will apply, (or a court would decide what is reasonable, based on such factors as seniority, length of service, what is common in the industry, although the latter is rare).

The statutory notice to be given by an employer is 1 week after a month’s service, and then a week for every year of the employee’s continuous service up to a maximum of 12 weeks for 12 years of service. The statutory notice for an employee to give is 1 week after a month’s service.

4. Do notice periods for employer and employee have to be matched?

Legally they do not have to be matched but it is good practice and reasonable to do so up to a point. For senior management roles it is common to jump to three months to be given by either side after a probation period, or a month for most roles.

The employer does have a greater statutory minimum to comply with, so taking into account the role; it may not be reasonable and appropriate to request a week for every year of service.

You can in theory ask for more notice than you as an employer have to legally give, however new recruits may not be happy to sign a contract where the notice they have to give is considerably longer than the employers notice. This may not be a good way to start off the employment relationship.

5. Can you change an employee’s notice period?

This would constitute a change to an employee’s fundamental terms and conditions and would require consultation with a view to seeking agreement for the change. If it is related to a promotion or change in duties this can be part of the terms that come with the new role. If it is being changed mid employment there should be a good and necessary business reason for this.

Employees in roles at the same level should be on the same notice periods unless you can justify why someone needs to be bound to a different notice period, otherwise you could face a discrimination claim.

For expert advice on Employment Law and notice period issues, please contact Wirehouse on 033 33 215

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