We are all familiar with the concept of giving or receiving notice whether as an employer or as an employee. The requirement for notice to be given is understood by everyone however, whilst this might seem like a rather straight forward process, there are circumstances that make even the most experienced managers hesitant about a way forward. So in this blog we decided to look at some of these circumstances and to clarify how notice provisions should apply.
Employee resigns – Can I leave now?
Whenever an employee wants to leave employment, they are bound by their contract of employment (or in the absence of this – the statute) to give appropriate notice usually in writing to their employer. The notice provision is not something that is optional and so each employee is bound by this requirement.
It is not an uncommon scenario for employees to assume or wish to just leave their workplace on the day they hand in their resignation. Unfortunately, this is not the case as they have a duty to give sufficient notice of their final day of employment to their employer.
Now, as a notice provision is a term and condition of employment, it can be amended by mutual agreement. Therefore, the employee can ask the employer to allow them to work a shorter notice period or to leave immediately. The employer however does not need to agree and can rely on the contractual requirement for the employee to work their full notice.
Payment in Lieu of Notice – Please leave now!
The majority of employment contracts allow the discretion for businesses to pay employees in lieu of notice. If your contract does not yet have this in place – please make sure that it does!
This provision is very useful when it comes to letting go of employees especially where the employment relationship is ending on less than favourable terms. The employer effectively can ask the employee to leave on any day they wish and to pay them for the remainder of their notice period (this is of course after following the appropriate dismissal procedures).
Any payments in lieu of notice are appropriate when it is a termination of employment. If the employer decides to make a payment in lieu of notice when an employee resigns, there is a risk of a potential unfair dismissal claim. If the employer wants the employee to not work their notice when they resign, then this should be achieved through the Garden Leave provision.
Not Paying Notice – Can I ever do that?
There is a constant temptation for employers to not want to pay notice to employees who perhaps are being dismissed for some misconduct or poor performance. The only time when an employee can be dismissed without notice or payment in lieu of notice is when there is a Gross Misconduct dismissal. If the employee was simply underperforming, or has collected a number of warnings and is being let go now – they need to be given or paid their notice.
Gross Misconduct dismissals need to be handled very carefully as they give the option for the employer to deny the employee one of their basic rights (right to notice). Therefore, before you contemplate any gross misconduct dismissal please speak to your HR advisers. There are numerous considerations that need to be made to make sure that the ‘test’ for a gross misconduct dismissal is justified.
To be on the safe side it is best to just always pay employees their full notice entitlements and avoid any potential claims due to non-payment of notice. Whilst this might seem unnecessary, often it will cost the employer more to go to a tribunal and defend the non-payment of notice then to just pay it anyway.
Next time you are considering what to do with someone’s notice period, please make sure you do not jump to conclusions and seek advice if you are unsure.
Here at Lighter HR Solutions we regularly handle various dismissal situations for our clients and know how complicated things can get. Do give us a ring on 203 319 1649 should you find yourself in a situation where you are unsure about any notice provision and we will gladly advise you on the best way forward.