Is your employee refusing to work their Notice Period?

An employee with a 1-month notice period in their employment contract has just tendered their resignation. They also stated that they wouldn’t be coming to work again. Where do you stand legally?

A notice period is the amount of time an employee is obliged to work for their employer between the date they resign, are dismissed, or are made redundant, and their last day of work.

Notice periods give employers the chance to make the necessary arrangements and plan ahead, find replacement staff in good time and ensure a smooth handover is provided. They also give employees the time to seek alternative employment. So, when an employee refuses to work their notice period, this can cause operational issues for their employer, potentially leaving them short-staffed, or without anyone to hand over to that person’s replacement.

Legal Aspects of Notice Periods in the UK

While each company can negotiate an individual’s notice period, known as the contractual notice period, the minimum requirement is set by UK law, as defined below.

Statutory notice is one week for employees who are leaving a role they’ve been in for one month or more.

For employers dismissing employees, statutory notice is:

• One week for employees who have been employed for over one month but less than two years.
• Two weeks for employees who have been employed for over two years, with an additional week’s notice for each further year of continuous employment, up to a maximum of 12 weeks’ notice.

When an employee resigns or is made redundant, they have the right to receive their normal basic pay, as well as any pay due for bonuses, overtime, sickness and annual leave, during their notice period, as per the terms of their employment contract.

The employee would normally be expected to continue working within their role during the notice period unless their employer agreed to them leaving early. For example, providing the contract allows for the provision of pay in lieu of notice, the employer may decide to end the employment relationship with immediate effect and the employee receives a payment instead of working their notice period.

Reasons Why Employees Might Refuse to Work Their Notice Period

There are various reasons why an employee may decide that they do not want to work out their notice period. For example, the employee may have received an offer of another job, possibly on better pay and conditions, and/or with an immediate start date; or they may have decided to set up their own business. The employee may have decided to emigrate or relocate to another part of the country or had a change in their personal life. Or perhaps they have been dissatisfied with their job.

In some cases, it may be a less common reason, such as being mistreated, being unhappy with working conditions, feeling let down by the job or company after a disagreement with a colleague, or even retaliation.

Employees can leave without serving the notice period if the employer has breached the contract.

Impact of Employees Failing to Fulfil Their Final Work Commitments

When an employee leaves without any explanation of why they don’t want to or can’t work their notice, it can be frustrating for the manager and the team. They may feel resentment or rejection, particularly if they worked closely with the employee.

Where an employee fails to work some or all of their notice period, it amounts to a breach of contract. Although you can point this out, the employee can’t be forced to turn up for work.

In light of the employee’s refusal, you could try to claim damages such as financial losses (i.e., your direct and indirect or consequential loss) due to the breach of contract through the civil courts. Employment solicitors can represent you in legal proceedings to ensure your interests are protected; however, such legal action is expensive and time-consuming so having contracts of employment that provide an effective remedy is the best way of ensuring an employee works the notice period.

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Dealing with Unauthorised Absence During a Notice Period

You may decide that you don’t want the employee to work their notice period and therefore you might try to agree with your leaver to waive their notice and end the contract with immediate effect. You wouldn’t need to pay them for their notice in this case. However, to avoid a claim at a later date, it’s advisable that both parties sign an agreement to this effect. See our Toolkit for an ‘early release from notice’ letter.

Alternatively, you could place the employee on garden leave. This is where the employee is still employed by the Company during their notice period and receives full pay but does not carry out any of their duties. This can help to keep the employee away from the business, but also prevent them from starting work for a competitor straight away. See our blog on Garden Leave for more information.

There are actions that you can take that may persuade the employee to keep to their side of the contract.

1. Remind the employee of their terms and conditions and advise that there are consequences to not working your period of notice. Initially, you may explain that if they don’t work out their notice period, they won’t be paid for its duration. You may also ultimately try to recover consequential loss or damage as a result of the breach of contract.
2. Advise the employee that the failure to serve the contractual notice could be reflected within their reference.
3. You could try to negotiate a shorter notice period with the employee instead, e.g. two weeks’ notice rather than four, so a replacement can be found and trained.

If the employee isn’t inclined to accept, then as the employer, you can’t demand that they come to work. That said, just because the employee has adopted this stance, it doesn’t mean that the employment contract has been terminated.

When an employee raises a grievance during the exit phase

A grievance raised during a notice period should still be managed using your grievance procedure. If you fail to do that, then the employee could submit a further grievance and use this as evidence to support a subsequent constructive unfair dismissal claim.

Raising a grievance during notice periods may be a tactical step by an employee to position themselves for a claim under employment law. However, it may simply reflect the relationship between the parties at the time. Allowing the employee to raise a grievance after submitting a resignation letter may allow issues to be discussed and resolved and therefore allow both parties to move forward at the end of the employment relationship.

Time off Sick

Following a resignation, if an employee is absent from work during their notice period, you will need to manage the situation in line with the employee contract and your employee handbook.

Failure to work the notice period because of sickness absence may affect the employee’s notice pay. Notice pay rights will be determined by a comparison of their contractual and statutory notice periods and whether the employee has resigned or been dismissed.

Recommendations and Best Practices

When drafting your contracts of employment, consider the length of the notice period based on their level of seniority and ensure your contract is easy to understand.

It’s also a good idea to conduct an exit interview with employees who have tendered their resignation. They allow employers to gather valuable information about the employee’s experiences and to voice any underlying grievances, which may explain their desire to not work the full notice period.

Endnote: Balancing Employee Rights and Business Needs

Notice periods work both ways, so where the early departure would cause little to no detriment to the Company’s performance, it is worth considering allowing the employee to leave on good terms and start their new journey. Ultimately having an employee reluctantly coming into work every day and potentially having a negative effect on colleagues and/or customers can be a lot riskier for the business.