Resignations, ill health capability, misconduct, redundancy, any of these reasons can lead to the employee or employer giving notice to the other.
It is important to ensure notice expectations for both parties are clearly set out in the main statement of terms and conditions at the start of employment, so when the time comes there is no confusion or dispute.
There are however a lot of misconceptions surrounding notice periods, and a lot of related issues to consider. We look at a few common queries.
What is a standard statutory minimum notice period?
We often get asked this at Wirehouse. There are typical periods for certain roles but really it’s a business decision if anything over the statutory minimum is required. Factors that need to be taken into consideration and weighed up are: how long would it take to find and train a replacement; what is a realistic notice period for that particular role; if someone resigns and wants to leave do you want them in the business for a long period if they have lost interest/motivation in the role; is a shorter notice period a good idea during a probation period?
The statutory minimum that an employer has to give is as follows: Under a months service – No notice; After a month and up to 2 years – 1 week; After 2 years – a week for every year of service capped at 12 weeks after 12 years of service.
For the employee – Under a months service – No notice. After a month– 1 week.
Other than this, an employer can ask for and give notice in excess of these parameters. If they gave less, the employee would have a right to claim for whatever has been promised.
However, notice does have to be reasonable for that particular role.
If asking an employee to give more than the statutory notice that they have to give, does the employer have to match this?
No they don’t, although it’s good practice to do so (especially with roles where they are asking someone to give longer notice), and it is arguably more reasonable. Also, if there is too much of an imbalance, it may mean someone is not happy to sign their contract if they think this is unfair.
In what situations would the employer not have to give and pay any notice at all?
Very few! If the employee commits an act of Gross Misconduct or another very serious breach of contract.
If an employer does not give the contractual notice, the employee can claim wrongful dismissal, breach of contract, or for an unlawful deduction from wages.
What if an employee refuses to work their notice?
If the notice period is not worked, this is a breach of contract so a strongly worded letter can be sent and a claim could be brought against the employee in the civil courts, if the employer has suffered any losses, but this can be costly, and it can be difficult to prove there has been a loss to the employer.
If an employee does not work their notice then it does not have to be paid.
An employer may have to bring in a relief worker in this eventuality to cover the work, or may incur other losses. An employer can add a clause to the main statement of terms to say that should the employee fail to give notice, the employer has the right to withhold pay for any losses they incur as a result. But a deduction can only be made if there are actual losses to the business, a deduction cannot be made as a penalty.
At Wirehouse, we ensure our terms contain this clause to ensure as much protection as possible for our clients.
Can an employer pay in lieu of making an employee work their notice?
Yes they can, if they have a pay in lieu clause included in their main statement of terms. Again, this is something we have embedded in ours.
If an employer hasn’t issued a contract, what happens?
If an employer hasn’t issued or the employee hasn’t signed an offer letter or written statement of particulars to agree to a certain notice period, then this usually defaults to the statutory minimum. However strictly speaking, as notice has to be reasonable the courts may imply a longer than statutory period of notice, basing this on a common notice period for a similar role in a similar industry, length of service, seniority etc.
Is there anything else to consider regarding notice periods?
Employers may want to consider including a garden leave clause for situations where they may want the employee to be contactable, but not in the business or carrying out their full/usual duties. And/or a statement that the employee must not work elsewhere whilst they are working their notice period.
For greater flexibility, an employer may want to include a written condition that notice periods may be waived or varied by mutual agreement.
Where an employer offers more than the statutory minimum holiday entitlement, they can also restrict any annual leave payments which are due to the statutory minimum if an employee is dismissed, or if full or proper notice has not been given, provided there is a suitable clause covering this in the written terms.