On the face of it, either party giving notice is a fairly straight forward process. However, there are a few things to watch out for. I have set these out below for guidance.
Statutory and Contractual Notice Periods
There are two types of notice period: statutory and contractual.
Statutory notice is the minimum legal notice that can be given. Employers should give the employee:
• one week’s notice if the employee has been employed by the employer continuously for one month or more, but for less than two years,
• two weeks’ notice if the employee has been employed by the employer continuously for two years, and one additional week’s notice for each further complete year of continuous employment, up to a maximum of 12 weeks. For example, if an employee has worked for 5 years then they are entitled to 5 weeks’ notice.
As an employer, you can set your own required notice in the contract of employment. This is known as contractual notice. This can be longer than the statutory requirement – but cannot be less.
Employees must give their employer a minimum of one week’s notice once they have worked for one month. This minimum is unaffected by longer service, unless their contract of employment states differently.
Check the Contract of Employment
When giving or receiving a resignation, ensure you check the notice provisions in the contract of employment to ensure they have been adhered to.
No Contract of Employment?
Where no contract of employment exists, or nothing is written down or agreed, the default position for both parties will be the statutory provisions. The company may also give reasonable notice based on the normal company notice periods, seniority of the role and what the company have done previously.
In what circumstance is no notice required?
No notice is required in 2 situations: –
• On the expiry of fixed term contract. If the person has less than 2 years’ service and the contract expressly states that the fixed term contract will end on a certain date, then no additional notice is required. However, ending a fixed term contract is still a dismissal and therefore where the person has more than 2 years’ service, you need to follow the correct procedure to ensure it is a fair dismissal,
• When the person is being dismissed for gross misconduct.
Where no notice is given by the employer
If the employer does not give any notice (or pay in lieu of notice) this is likely to be a breach of contract and as such is a wrongful dismissal. By not paying notice, this action could also constitute unlawful deduction of wages and other benefits.
Where no notice is given by the employee and they just leave
Again, this will be a breach of contract. One course of action available to the employer is to sue, however, unless you stand to suffer large financial loss or where the contractual restrictive covenants are breached, it is probably not worth it in cost, time or outcome.
Notice should be given in writing; it can be a letter or email but ensure the requirement for it to be in writing is set out in the contract of employment. The written communication should clearly set out it is a resignation and it should clarify the date notice it is given.
The notice period will start from the start of the day after the day that notice was given, for example if a week’s notice is given on Monday then the start of the notice period will be Tuesday and expire the following Monday.
During the notice period employees are normally paid their normal pay and benefits that are set out in the written statement or contract of employment.
As an employer, where you receive a notice of resignation, you should acknowledge it in writing, confirm the last official date of employment, the last working date (if different) and any other termination arrangements.
Can a resignation be withdrawn?
Once given a resignation cannot be withdrawn unless by agreement of both parties. This also applies to the shortening or lengthening of the notice period.
Alternatives to the notice period?
In certain circumstances payment in lieu of notice (or PILON) can be given, but this provision must be contained in the contract of employment. Enforcing PILON when not provided for in contract will be a breach of contract. The exception to this is where both parties agree to PILON. In this situation, ensure the agreement is in writing so it cannot be challenged by the employee that they were forced to leave.
Garden leave (not gardening leave!)
Garden leave is used by employers when they don’t want or require the person to come into work during their notice period. An employer may also ask the person to work from home or somewhere else during their notice period.
This is useful to prevent a departing employee working for a competitor or keeping the employee away from sensitive data or company plans.
Garden leave should be a provision with the contract of employment.
During the period of garden leave, employees are entitled to their usual pay and contractual benefits (except where the contract states otherwise, such as bonus or commission).
Resignation in heat of moment
A resignation made in the heat of the moment is where a person resigns when they are angry or upset. They may not have made a rational decision to terminate the employment and might regret it.
In these circumstances, the employer should consider giving the employee the opportunity to retract their resignation after they have had time to calm down, known as a ‘cooling off period’.
By not allowing an employee to retract a heat-of-the-moment resignation, the employer may be at risk of an unfair dismissal claim.
I resign but ……….
Where a person resigns but within their resignation letter sets out all the reasons and alleged faults by the employer that caused them to resign, this should be taken seriously and further explored.
By not looking into the claims raised by the person, may risk a claim of constructive unfair dismissal, especially where the person leaves immediately.
Offer to meet the person and discuss the issues they have raised.
How can Hill HR help?
If you are unsure with how to deal with a notice of resignation, or any other HR matter, please contact Hill HR who would be happy to help #hillhr #resignation