Notice
Employment law- Notice
What is the minimum notice that you entitled to receive from your employer?
Although you can agree specific notice with your employer, which forms part of the terms of your contract of employment, there are statutory minimum notice periods which apply. These are
Between 1 month and 2 years – 1 week’s notice required;
Between 2 and 12 years – 1 week for every year worked up to a maximum of 12 weeks.
For example, if you have worked for 8 years, in the absence of any contractual provision, or where your contract provides for less than the statutory minimum, you would be entitled to 8 weeks notice.
An Employment Tribunal can order that you should be entitled to more than 12 weeks notice because it is “reasonable” in that industry. For example, it may be that for senior managers in a certain sector, the usual notice periods are 6 months. It is rare, however, for a Tribunal to make such a finding.
If you are not provided with your statutory minimum notice period or contractual notice period, you may have a claim for breach of contract, otherwise known as “wrongful dismissal”.
What is the minimum notice that you must give to your employer?
Usually, the contract of employment will specify what notice period you should give if you wish to resign your employment. This can be varied by agreement.
If the contract is silent, the statutory minimum period of notice where you have been employed one month or more is 1 week. You can give notice verbally or preferably in writing (an email would suffice). This is to stop any subsequent dispute as to whether notice was, in fact, given.
A much longer notice period may, however, may be implied if it is reasonable in all the circumstances (i.e. what is normal for a person of that seniority and in the industry).
What are your payment rights during your notice?
You are entitled to receive your normal pay during your notice period, as set out in your contract of employment. This includes any time that you are off sick (assuming you are entitled to sick pay), on holiday or maternity pay. You are also entitled to be paid when you are available for work, but your employer does not provide you with any.
What if you wish to give less notice than what your contract provides for?
If you wish to leave before the end of your contractual notice, in practical terms, there are few remedies for your employer. You cannot be forced to work as a matter of law, even though you may be in breach of contract. In certain circumstances, an employer may be able to obtain an injunction to stop you from working at a new employer during your notice period. They would have to be show that your new employer is a direct competitor and that there was a legitimate need to protect the employer’s interests- this is not always an easy task. Where such claims are made, it is usually only against senior executives
You may also be sued by an employer for the additional costs arising from the breach of contract, i.e. the cost of replacement staff for the balance of your notice period. In the most serious cases, a claim could further be made for lost business arising from your breach. Again, such claims are very rare and likely to be brought against senior personnel only.
If you give less notice than you are contractually obliged to give, your employer may try to withhold pay due to you for the time that you have already worked because of this incorrect notice. Employers are generally not entitled to make such a deduction unless this is provided for in your contract of employment.
What is “Pay in Lieu of Notice”?
This is where you are paid for your notice without having to work it- hence it is “paid in lieu”. This is often referred to as a “PILON” clause in your contract of employment. You may be required to none of your notice or just part- and paid for the balance.
There is usually no entitlement to be paid for additional holiday days for the notice period where you have a PILON clause, unless your contract of employment says otherwise. There is, however, an entitlement to be paid your benefits (such as pension) for the PILON period, unless your contract specifically excludes this.
What is “Garden Leave”?
You may be asked not to attend the workplace during your notice period, even though you continue to be paid. This is known as “garden leave”- where you are expected to stay at home and not commence other new work for the balance of your notice. You are still, however, subject to the terms of your employment contract such as confidentiality, and you may be obliged to return work for all or some of the garden leave period at your employer’s request.
Whilst you are on garden leave, you are still entitled to full pay and any company benefits, including bonuses. At the same time, however:-
- you may be required to take any outstanding annual leave;
- your employer may request that you refrain from contacting any clients, customers, suppliers or contacts of the employer without their prior consent;
- you may be prohibited from working elsewhere or commencing employment with a new employer or on a self-employed basis.
Garden leave is something many employers are keen on, especially where you are a senior executive with important client contacts and confidential information. Putting you on garden leave takes you out of the equation for the period of your notice which means you cannot contact clients or colleagues for this period. This is how it protects your employer. At the same time, you also have to be on standby in case your employer still requires all or part of your services for the garden leave period.
