What can I do if my employee doesn’t want to work their notice?

You weren’t expecting to be broken up with today.

But as you sit down with your instant coffee, ready to plough through today’s unread emails, the subject line “my resignation” instantly commands your attention.

You reluctantly click on the email. Your employee’s leaving - if that wasn’t already abundantly clear. But any initial feeling of sadness quickly turns to anxiety as you keep reading...

“My new employer needs me to start straight away. Is there any way we can waive my notice period?”

Double punch. Not only are they leaving, they want to leave right now.

Well, hang on a minute. Wouldn’t that be in breach of their contract? What if your notice periods are a saving grace at such a hectic time? Well, you have a few options here…

A good place to start is to check your contracts

So, here’s some employment law context for you which you may or may not already know. If your employee has worked for you for less than a month, the statutory position is that they don’t have to give you notice if they want to leave.

If they have worked for you for more than a month but less than two years, the statutory notice period is one week.

But in most cases, notice periods are longer than this (usually between one to three months). You should find the specific amount of notice written in your contract. So, check this first.

Then, consider the reason why your employee is leaving…

When an employee hands in their notice, it’s safe to say they probably want to leave as soon as they can - whether that’s to start a new position elsewhere or to take a break and go travelling.

In unfortunate cases, an employee might want to leave because of a dispute with a colleague or because they’re unhappy with their working conditions. But you may not always find out the true reason for someone leaving.

Regardless of the reason, it’s important to be as understanding of your employee’s decision as possible – and to help them leave on terms that suit you both. This doesn’t mean you have to let them go at once and let your business suffer, but you should be on the same page at least.

You’ve got to ask yourself: am I okay with my employee leaving straight away?

You can agree to let your employee leave without working their notice, even if it’s in their contract – if that works for you.

Instead, you could pay them in lieu of their notice. Meaning, you could end your employee’s contract immediately, so they don’t have to work their notice period – and just pay them a lump sum for the time they would have worked.

You will need to check if you have the contractual rights to do this though (look out for a PILON clause in your staff contracts).

Or, you could compromise and agree on a shorter notice period.

But let’s say, there’s a reason why your notice period is important. Maybe your employee’s leaving to work for a competitor, and you’re worried about them giving away company secrets. If that’s the case…

You may be able to put them on garden leave

Putting your employee on garden leave means they still have to complete their notice period – but they don’t actually have to work. On garden leave, you continue to pay your employee until their notice period ends, but they don’t have to complete any work or come into your workplace.

Your employee also can’t start work for another employer until their notice period ends.

As mentioned, you might do this as a precaution to reduce the risk of your employee giving away sensitive company information to a competitor if they leave to work for them straight away. It can also prevent them from trying to steal your clients. (You can also help to prevent a situation like this by including a restrictive covenant in your contract).

If garden leave isn’t written into your contract, you can’t enforce it on your employee. But you can get them to agree to it even if it’s not in their contract. Explaining how they will continue to get paid without having to do any work may convince them.

Garden leave might work if your employee is willing to still continue their notice. But if they refuse to do this or work their notice, then you may be able to take it further.

The fact is… refusal to work a notice period is breaching contract

If you decide you have to enforce the notice period and your employee refuses to work it, this would be a breach of contract on their part (as long as you have not already breached the contract).

By law, your employee is contractually obliged to work their notice period up until their last day of employment. And if they don’t work their notice and are in breach of their contract, you don’t have to pay them for time they didn’t work.

If your employee refuses to work their notice period, you could make a legal claim against them if your business suffers damage or losses as a result. This might be the case if your employee leaves their role suddenly, and you have no choice but to hire someone to replace them short term. You may be able to claim expenses back.

However, you would only be to claim for the extra that it cost you to cover the employee’s absence above what you would have normally paid them in wages. You should also ideally have a clause in your contracts that allows you to do this, otherwise you could risk facing a claim for unlawful deduction of wages.

It’s worth remembering, however, that taking your employee to court should always be a final resort. In most cases, it’s unlikely a tribunal will uphold a claim against an employee for refusing to work their notice. You would have to be able to prove their departure had a serious impact on your operations.

Here are some resources that might help…

Hopefully you find this blog useful, but to find out more information you may also want to take a look at the following:

·       Our guide to resignations and how to handle staff departures in a professional manner

·       Our blog on how to keep employees motivated during their notice period

·       Our guide to carrying out exit interviews and what you can gain from departing employees

And if you have a specific question relating to notice periods, contracts, or employee conduct, you can also speak to an expert directly for free. Just tap below to book in for a free advice call.