Notice Periods

The notice period can be a challenging time for both employers and employees, particularly if the employer has had to serve notice to bring the employment contract to an end, and the employee is still required to work. But even if it’s the case that the employee has resigned and you are parting on good terms, a good leaver can also be a challenge if they have mentally clocked out whilst they are supposed to be working their notice period. 

We thought we’d share some of the most frequently asked questions around notice periods, bust some myths and explain in more detail your rights as an employer (YES, YOU DO HAVE RIGHTS TOO!)   

Resignations 

A key member of the team has given notice to leave, can I refuse to accept their resignation?

You can ask the employee to reconsider, but you can’t refuse to accept notice once it’s been given.

I never got round to issuing my longest serving employee with a contract of employment, now they’ve found another job, how much notice do they need to give me?

By law, they are only required to give a weeks’ notice, but you can speak to them and ask if they’re prepared to work a longer notice period if necessary.

Can my employee retract their resignation, they’re saying that they’ve changed their mind and don’t want to leave?

Once you have accepted a resignation, your employee does not have the right to withdraw their notice.  So, if you don’t want them to stay, you’re within your rights to refuse.   This highlights the importance of accepting a welcome resignation promptly and if possible, in writing!

What are my rights if an employee resigns giving more than their contractual notice?

An employee is entitled to give more than their contractual notice.  If they do and you really don’t want them in your business, then speak to them.  The extended notice may have been given unintentionally, many employees mislay their contract and assume they must give a months’ notice when their contract only stipulates a week.    If you try to finish them earlier there is a risk that they can claim unfair dismissal.

Is my employee entitled to work their notice period, I’m worried because they are going to a competitor?

There may be instances when you don’t want the employee in your business, especially if they have resigned, and are leaving to go to a competitor.  Check their contract to see if you have the right to pay them in lieu of notice or place the employee on garden leave.   Before the employee leaves, remind them of their ongoing duty of confidentiality and any restrictive covenant clauses written into their contract of employment. 

Money Matters

Can I make deductions from notice pay if my employee resigns owing the Company money?

There are many instances, when an employee resigns owing money, eg.  for training costs, overtaken annual leave, loans, or the cost of repairs to a company vehicle.  Subject to having the correct, signed agreements already in place, or a clause in the contract of employment regarding deductions from pay then you can make a lawful deduction from their final pay (in some instances even if the deduction takes their final wage below NMW.)

What do I do if my employee just walks out, without giving any notice at all?

If your employee walks out, it’s important to find out why.  It’s important to make contact to find out if something has happened at work, has there been an incident that you need to investigate?  This is your opportunity to try and nip a potential claim in the bud.  Check their contract, if you incur additional costs (for example, by having to hire a temp to cover their notice period) you may be able to recoup the additional costs from the employee.  If they have timed their departure just after they’ve been paid, you can still write to them and ask for reimbursement.

Sickness Absence

What happens if my employee goes off sick during their notice period?

Check their contract to see what their notice period for dismissal would be. Even if they have resigned, their notice pay rights if they are unable to work their notice period depends on their dismissal notice period (the notice given from the employer to employee.)  Notice pay when an employee is off sick will depend on whether the notice they’re entitled to receive if they were dismissed is the basic statutory notice period of 1 week for each year of service (capped at 12 weeks) or you give an enhanced notice period. 

If the dismissal notice period is less than a week longer than the statutory notice period, they’re entitled to 1 week’s full normal pay if they’re off work during their notice period.  For any remaining weeks they’re off work, they’re only entitled to the type of pay for the reason they’re off, for example SSP or contractual sick pay.  

If the dismissal notice period is more than a week longer than the statutory notice period, they’re only entitled to be paid for the reason they’re off during their notice period, for example SSP or contractual sick pay. 

Annual Leave

Does an employee accrue annual leave during their notice period?

Yes, they will continue to accrue annual leave right up to their last day of service.   Annual leave is not generally accrued if an employee is paid in lieu of notice. 

Can I insist that an employee uses up outstanding annual leave during their notice period?

Most contracts will contain a clause giving you the right to insist that an employee uses up outstanding annual leave during their notice period or garden leave.  If not, then as long as you give twice the amount of notice to use up leave you can still ensure leave is used up (eg. if an employee has 2 days to use up, give them 4 days’ notice.)

Misconduct and Grievances

Can I ignore a grievance that’s been raised during a notice period, there doesn’t seem any point dealing with it now?

In these circumstances offer the employee the opportunity to have their grievance heard before they leave.  Even if the issues are from months ago and on the face of it appear “out of time” to make a claim against you, we would always advise that the complaint is addressed during the notice period. 

What are my rights if an employee doesn’t toe the line during their notice period?

An employee who has resigned is often disengaged, they may have already mentally “clocked off” and in some instances may now be disruptive and causing problems.  In which case, as they are still employed and you are paying them, you have every right to challenge them.  In most cases, unless their conduct amounts to gross misconduct it’s probably not worth pursuing disciplinary action.  Our advice is to have a discussion and if necessary, seek to agree an early release date.  If they don’t agree, then you may be able to pay them in lieu of the remainder of their notice period or place them on garden leave (again, check the wording in their contract of employment.)

Redundancy situations

How do I calculate redundancy notice pay?

Notice pay is based on the average earned per week, over the 12 weeks before the notice period starts.

Can I rescind notice given to an employee, they were due to finish due to redundancy, and we have just won another contract, so now I can’t afford to lose them?

Unfortunately, in this case you do not have the right to rescind notice, unless your employee agrees.   However, if you are offering the employee the opportunity to stay in the same job on the same terms, this could affect their entitlement to redundancy pay as there is no longer a redundancy situation and they are unreasonably refusing suitable employment. 

I have had to make an employee redundant, and they are supposed to be working their notice period, but want to leave early as they have another job, what can I do?  Can I withhold their statutory redundancy pay? 

Once notice has been served, even if an employee leaves before the end of their notice period, by serving you counter notice, they are still entitled to their statutory redundancy pay.  You will only need to pay them up to the day they last worked, they won’t be entitled to pay in lieu of notice if they decide to leave early.  However, you can give further notice in writing and state that you require them to withdraw their counter notice and that they will not receive redundancy pay if they leave early.  

In both of the above situations, if the employee were to pursue a claim, it would then be up to the Tribunal Judge to decide whether the employer should pay all or any of the redundancy pay. 

So, you see, employers do have rights too!  If you would like to discuss any of these topics in more detail, or want to know more about your rights as an employer then please contact us