What are notice periods?
A notice period is the length of time an employee is required to give their employer if they want to leave employment or the length of time an employer must give an employee if they are terminating their employment.
What are the statutory notice periods?
Statutory notice periods for resignation are 1 week if you have been employed for longer than a month.
Statutory notice periods for termination of employment are 1 week for every continuous year of service up to a maximum of 12 weeks.
However, usually the contract of employment will specify what notice period an employee should give if they wish to resign. This can be varied by agreement. The contract will also usually state what notice the employer is required to give to terminate the contract. If the contract provides higher notice periods than statutory then these will apply. If the notice period in the contract is less than statutory, then statutory will apply.
What if there is no employment contract?
If there is no contract or the contract is silent, the statutory minimum period of notice where you have been employed one month or more is 1 week.
A much longer notice period may, however, may be implied if it is reasonable in all the circumstances (i.e., what is normal for a person of that seniority and in the industry).
Should notice be in writing and when does it start?
Notice of resignation can be given verbally but preferably should be in writing (e.g., an email). This is to stop any subsequent dispute as to whether notice was, in fact, given.
Notice of termination of contract from an employer should be in writing.
Notice for both resignation and termination of employment by the employer starts the day after it is given e.g., an employee resigns on a Monday and has to give a week’s notice. The notice starts on the Tuesday and their last day would be the following Monday.
What if an employee asks to leave earlier than their notice period allows for?
You can agree for them to leave earlier if you wish, you will not need to pay them for the notice that they are not working. You do not have to agree but consider that there is a risk they will go off sick for the remainder of their notice period or just go AWOL.
Can I force an employee to use their holiday in the notice period?
Yes, you would need to ensure that you give them twice as much notice as the duration of the holiday that you want them to take as per the Working Time Regulations. This is the case even if it is in their employment contract that they will be required to take holiday during their notice period.
If an employee doesn’t work their notice period, do I have to pay them?
No. if you have a clause in their employment contract for deducting from their final pay for the costs of a replacement you can do this but usually this will only be for any costs that you would have incurred over and above what you would have paid them. It is possible to sue for breach of contract but in most cases, this is not worth the hassle.
You can also think about whether you would mention that they didn’t work their notice period if you are asked to provide a reference for them. As long as the reference is factual this is fine to do.
If an employee asks to use their holiday in their notice period but we need them to work, can we refuse?
Yes, you can refuse just as you normally would taking into account business need. Again, though there may be a risk that they do not return to work to continue their notice period as they may go off sick or AWOL.
What if we don’t want them to work their notice period or they become difficult during their notice period?
You can ask if they would agree to a shorter notice period and come to a mutual agreement about this. However, if they do not agree you would need to either pay them in lieu of notice or put them on garden leave (if these are options within their employment contract, though it is low risk if you don’t, as long as you pay them what would be due if they had worked the notice period). To do anything else would be terminating their contract and therefore, you would have to follow an appropriate process for dismissal.
If an employee hands their notice in and they are on sick leave or family leave, how much notice should they give and what do I pay them?
They still need to provide the notice that is in their employment contract. If there is no contract, then the statutory resignation period is 1 week.
If they will remain on sick leave/family leave during their notice period, then what you need to pay them depends on the notice periods contained within their contract.
If they are on the statutory minimum notice, then they should receive full pay even if they aren’t working during their notice period. However, if their contractual notice period is at least a week longer than the statutory minimum you would need to give if you were terminating employment (1 week for every completed year of service, up to a maximum of 12 weeks) then you only need to pay them what they would have normally received during that time e.g., SSP or SMP or no pay.
Can I still discipline/dismiss an employee who is in their notice period?
Yes, but you may want to bear in mind if it is worth doing so depending on the circumstances. You can still carry on if you feel you have enough time.