Minimum notice periods for the termination of employment are covered by section 86 of the Employment Rights Act 1996. The notice period due to employees may also be determined by any contract of employment in place (see Statement of Particulars for more details) – if the contract gives more notice than the legal minimum, this will normally apply.
The statutory minimum period of notice is:
- not less than one week’s notice if the employee has been continuously employed for between one month and two years.
- not less than one week’s notice for each year of continuous employment (maximum of 12 weeks) if the employee has been employed for two years or more.
If the Statement of Particulars, or another document confirming the notice period, has been issued within the first month of employment, this will apply. Otherwise, the Employment Rights Act is silent on this matter, and notice should simply be reasonable.
Unless the contract states otherwise, notice can normally be given on any day, and the notice period runs from the start of the following day: if the notice is given on Monday, the period of notice will begin on the Tuesday, and continue until the end of the respective Monday (1-12 weeks later).
Notice periods can be varied in certain circumstances:
If the employee is dismissed for gross misconduct, they can be dismissed without notice.
Breach of contract
If the employee leaves without notice due to a fundamental breach of the contract (constructive dismissal) they will not be obliged to give notice.
If both the employer & employee agree, the notice period can be altered, covered with Payment in Lieu of Notice (PILON).
If an employee is given notice of termination, subject to the contractual & legal notice they must provide they can give a counter-notice to leave on an earlier date than the employer’s. The employer cannot normally give counter-notice to an employee unless the termination is for a fair reason, as this may otherwise be considered an unfair or wrongful dismissal.
Remedies for Not Providing Notice
Unless there is a specific clause in the employment contract providing for this, employers cannot withhold any pay earned due to an employee’s failure to provide notice, and any deductions would constitute an unlawful deduction from wages.
In practical terms, there is little in the way of remedies that an employer can take – they cannot force an employee to work the notice period, but they may be able to obtain an injunction to prevent the employee working elsewhere.
If there is a financial cost to the business as a result of the employee’s actions (i.e. the cost of replacement staff for the notice period), the employer can sue the employee for this.
If the company fails to give the employee sufficient notice, the employee may claim for breach of contract.
Garden or gardening leave involves the employee not attending the workplace during their notice period, although they remain employees bound by the relevant employment policies. As such, employees can be required to attend the workplace during gardening leave.
Garden leave is most commonly used where employees may have access to confidential information. In order to protect their interests, the employer will ensure the employee cannot work for anyone else in the notice period, but equally will not have access to confidential material.
If you require advice on dealing with a notice period, contact Employment Law Clinic.