Employees not working notice period

When a member of staff has decided to leave a company, a notice period is usually worked. However, on some occasions an employee will refuse to work their notice period, leaving employers in a difficult situation.

Notice periods exist to provide an amicable and professional end to the working relationship. Allowing employers time to find a replacement and to ensure any final projects or responsibilities are completed before the employee leaves.

If an individual has decided to leave without working their notice period, it’s important to know what you can do as an employer.   

Are notice periods a legal requirement?

While it may be the employee’s desire to leave their position as soon as possible. Perhaps they have been offered a new job with an immediate start date, a personal issue has occurred, or they simply no longer enjoy working for the company. Unless otherwise discussed, employees are contractually obliged to work their notice periods.   

Where an employee chooses not to work their notice period, they may be in breach of their employment contract.

If a notice period is not mentioned in the contract, an employee will have to work a statutory minimum notice period:

• If employed for one month but less than 2 years: one week’s notice.

• If employed for 2 years but less than 12 years: one week’s notice for every year.

• If employed for 12 years or more: 12 weeks’ notice.

Statutory notice periods are set out in the Employment Rights Act 1996, and they apply to those legally classed as employees and have worked for an employer for at least a month.

Reaching an agreement with your employee

Sometimes the best solution to this issue is to reach an agreement with your employee. Whereby you discuss other options that do not involve them working their notice period.

You can agree to allow them to leave during their notice period, suggest for them to take garden leave, or offer payment in lieu of notice (PILON). However, these will only apply if the contract allows, and/or the employer wishes to remove the employee from the workplace before the end of the contracted notice period.

Waiving the notice period

Once an employee hands in their notice, they normally want to leave as soon as the resignation date applies. If you keep this in mind and can negotiate with them, they will realise you're trying to create a situation that's best for both parties.

You may accept that the best solution for both parties is to simply end the employment contract early and allow the employee to leave without working the notice. Or perhaps, you would prefer to offer a shorter notice period.

If you do decide to allow the employee to leave without working their entire notice period, you should confirm this in writing. This ends their employment contract and means you won't have to pay them for the unexpired part of their notice period.

Offering garden leave

Garden leave is an option for many employers to keep employees away from the business during their notice period, with no expectation of them to work.

This option may be used if they are leaving to join a rival business. To protect sensitive business information or to prevent disruptions to the workplace. During garden leave an employee is technically still employed by the business and will continue to be in receipt of their full pay and benefits.

Payment in lieu of notice period (PILON)

Pay in lieu of notice (PILON) is a type of payment which is given instead of working.

You can decide to provide PILON payment instead of asking employees to work through their notice. With this payment, the employee’s contract will end straight away. In essence, this is a way of paying someone to leave with immediate effect.

It's important to note that you must make sure you have the contractual rights to pay in lieu of notice and that this agreement is put in writing.

Do you need to pay an employee who refuses to work their notice period?

If an employee does not work their notice period, as the employer you are not legally required to pay them for this time. This is because it's now a breach of their contract. It is however recommended to include this in your employment contract to prevent disputes in the future.

You will have to pay them for their usual benefits earned up to the last day that your employee worked, for example, their pension contributions or paid holiday entitlement.

Holiday entitlement

If your employee refuses to work their notice—as mentioned before, they’re still entitled to full pay for work they've done up to the last day that they work. This includes any money owed for untaken paid holidays and taken paid holidays in that time.

Sickness and absences

Following resignation, if your employees can't work because they're sick, their pay might be impacted.

If their notice period is the same as statutory or less than a week more than statutory, you employee is entitled to receive full pay throughout their statutory notice despite being absent due to sickness or injury.

However, if their contractual notice period is longer than statutory by a week or more, they are entitled to the appropriate pay for the reason they're off, for example, statutory sick pay (SSP). This sick pay will be their regular rate of pay for sick leave.

Taking legal action

Since a refusal to work a notice period is a breach of contract, you may be able to take legal action against your employee.

While it is not easy to prove, you could, for example, take the employee to court for damages to your business. This should, however, always be a last resort.

If you do wish to take an employee to court for damages, such as financial losses, you will have to provide proof of this. A court will expect you to explain thoroughly and have supporting documents that go into detail about any profits lost, and any costs for hiring cover staff. You should also note that a court is unlikely to force staff to work their notice period.

Managing immediate leave and the impact on your business

As with any business decision, it is important to consider the impact your final agreement will have on the business. By accepting leave with immediate effect, could this hinder the performance of your business? or leave other employee’s workloads in disarray?

This is certainly something you should bear in mind before reaching an agreement or making a final decision.

Not sure what to do? Get employment law advice from BrightHR

If you're unsure about your legal requirements regarding notice periods, it’s a good idea to consult an employment law expert. Especially if you find yourself in a position where you need to take legal action or if there has been a breach of contract.

BrightHR has the resources available to help, from BrightAdvice your own expert legal advice team—who are available 24/7—to our award-winning HR software.

Discover more and see for yourself how BrightHR can help by booking your free demo or call us today on 0800 470 2432.