• Leah Norman

Employees not working notice periods?

For some staff, the moment they hand in their resignation is the moment they shut down


This morning I had a client ring me following the resignation of a staff member, who is now coming to work but feels that they don't have to work, or can come and go from the worksite as it suits them, and while my client is rightly frustrated, he is not alone.


Employees not working notice periods can be a real headache. If the departing staff member is one you didn't want to lose due to their skills and experience, or your in a position where the resulting delay in getting a job completed will have a negative impact on your business, then you're no doubt still feeling frustrated.


But now they won't even work their notice period, and your disappointment that they're leaving is turning into resentment. Let's be clear straight away. As long as you haven't breached the contract, you don't have to pay someone for their notice if they refuse to work it.


When resigning from a job, the employee may have asked what you can do if they don’t give the notice that is required by their employment agreement. Yes, employees will normally be contractually obligated to work their notice period. But sometimes it's not that simple. After all, you can’t force someone to work for you.


The statutory notice period for an employee who resigns is one week—if, that is, they've been working for you for one month or more. This is true of employees who are on their probation period, too. If someone gives you their notice on a Monday, their last day of that 'one week' is the next Monday.


Contractual notice, on the other hand, is at the discretion of the employer—as long as the employee signs their contract. For this reason, it's common for many businesses to write into contracts that staff must give a minimum of one month's notice when resigning. If staff sign the contract, they must adhere to it.


You might then ask, "Why not just write long notice periods into all staff contracts?" And on the face of it, this idea sounds great. It would give you more time to hire and train new staff to replace the leaver. If the contracts you offer have long notice periods, you might actually deter new talent from wanting to join you. When someone decides to leave they don't want to have to serve a three-month notice period and f you try to force them to stay too long now that you know they don't want to be there, can you be sure that their productivity level will still be high?


My advice is to be smart with notice period lengths. Set each one according to the level of the role someone is in. If someone is in a entry-level role, and neither replacing nor training them will take long, is keeping them around for longer than a week worth it? Make sure that their contract is clear about notice, and that all clauses are easy to understand. A hard-to-read contract will only cause confusion and problems in the future.


When staff sign their contract, they do have a legal requirement to fulfill their notice. Of course, this doesn't always happen. There are two actions you as an employer can take in such situations;


  1. The most common is to get reimbursement for the financial loss suffered by the employer due to the lack of sufficient notice. This can either be by deducting the amount from the final pay (only possible if that is provided for in the employment agreement and following consultation with the employee as The Wages Protection Act 1983 provides protections for employees against unlawful deductions, and in some circumstances deducting from final pay for notice not worked may be unlawful, it is best to seek advice about your specific circumstances prior to deducting any money from an employee’s final pay.), or applying to the Employment Relations Authority for damages. For this reason, many employers included a forfeiture of wages provision in the employment agreement. However, you should do this as a last option. Damages such as loss of profit are not easy to prove. You would need to have documents that go into detail about any profits lost, as well as any costs for hiring cover staff.

  2. Another, less usual, action is to apply to the Employment Relations Authority to impose a penalty on the ex-employee for breaching their employment agreement (by not working the required notice). Section 134 of the Employment Relations Act 2000 states that every party to an employment agreement who breaches that agreement is liable to a penalty. however this is a time consuming process, so you really need to ask yourself if it is worth it?

Equally, if you breach the employment contract, an employee might not need to work their notice period.


For advice on how to manage notice periods your workplace, contact Yellow Consulting for a no-obligation chat.

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.