HR & Employment

Is a notice period legally binding?

Bryan Brown | 20 August 2021 | 3 years ago

Is a notice period legally binding

When an employee hands in their notice, it begins a process that can be stressful. This involves recruiting and training a new candidate to fill the role, as well as handing over any ongoing work from the departing employee. However, this process becomes far more stressful if the employee refuses to work their notice period. This might leave you asking the question: is a notice period legally binding?

In this article, we’ll explain the legalities around notice periods, from the point of view of both the employer and the employee.

How much notice do employees need to give to leave a job?

The length of notice that an employee will need to provide to leave a job will depend on their contract of employment. This should detail the required notice period upon their resignation. Typical notice periods usually range from one to three months, depending on the employee’s length of service.

If the contract of employment does not set out a required notice period, there is a statutory notice period of one week’s notice. However, if the employee has worked for the company for less than one month, they are not legally obliged to give notice of their resignation.

Employee refusing to work notice period

Employee refusing to work notice period

First things first, if an employee has signed a contract of employment which sets out the notice period that they are required to provide, they are contractually obliged to fulfil this when leaving their employment. However, it’s not always that simple.

When an employee decides to leave a company, their mindset will often change. Rather than giving their job their all, you may find that they become distracted with thoughts of the next step in their career.

You might find that some employees will refuse to work their notice period, especially if their new job has requested an immediate start. Whilst the employee is contractually obliged to work their notice period, you are left facing a decision of whether to force the employee to come to work, knowing that they may not give the job their full concentration and effort.

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

If an employee refuses to work their contractual notice period, the employer is not legally obliged to pay the employee for this time. This is because the employee is in breach of their employment contract during this time. However, it’s advised to set this out in the contract of employment, to avoid any disputes later down the line.

Can I refuse to work my notice period?

As an employee, you are legally obliged to honour the period of notice which is set out in your employment contract, and this contract is enforceable by law.

If you want to resign from a company without working your full notice period, it’s best to discuss this with your employer. They may agree to waive your notice period and terminate your contract of employment with immediate effect. This will avoid any legal action being taken against you for breach of contract.

Can a company enforce a notice period

Can a company enforce a notice period?

If the employee signed an employment contract that detailed the notice period required, this is a legally binding contract that is enforceable by law. This means that the company can take action against the employee if they refuse to work the notice period.

However, it’s worth considering the pros and cons of enforcing the notice period before deciding to do so. Most employees would lose motivation for the job after resigning and being forced to work their notice period, meaning that the company would be paying an employee to potentially not give full effort.

Alternatively, you could choose to waive the notice period and terminate the employment contract with immediate effect. This means that you wouldn’t need to pay the employee for their notice period.

If you choose this course of action, it’s always advised to ask the employee to sign their agreement to avoid any claims later down the line for an unpaid notice period.

What if you don’t want the employee to work their notice period?

There are many reasons why a business might not want an employee to work their notice period. The most common reason for this is if the employee is leaving to work for a competitor. This could mean that the employee working their notice period could put sensitive information at risk.

In this case, many businesses opt to put the employee on garden leave. This means that the employee does not need to work their notice period, but the employer pays them for this time. This helps to protect sensitive commercial information that could otherwise be taken to the competitor.

Related questions

What happens if I breach my notice period?

The notice period set out in your contract of employment is legally binding and enforceable, if you signed the contract. This means that your employer could choose to take legal action should you breach that contract. If you have a reason for not wanting to work your notice period, you should discuss this with your employer, as they may agree to waive the notice period.

Can you start a new job during your notice period?

You are contractually obliged to work for the duration of your notice period, unless your employer agrees to waive this or places you on garden leave. During this period, you are still bound by the terms of your contract of employment. If your contract states that you cannot be employed by any other company, you should not begin another job during your notice period, unless you have the consent of your existing employer.

Can I resign with immediate effect?

If you have signed a contract of employment that sets out your notice period, this is legally binding and can be enforced by the employer. This means that if you break your contract, your employer may decide to pursue legal action against you. You can request that your notice period is waived, but this is up to your existing employer to agree to.

How to deal with a breach of notice period

It’s always stressful when an employee hands in their notice, but this stress is only increased if the employee then breaches their notice period by refusing to work. In this case, you have two options: pursue legal action for breach of contract, or agree to waive the notice period, meaning that you won’t need to pay the employee.

Which option you choose will depend on the needs of your business: there is no right or wrong answer. If you’re considering taking legal action for breach of the notice period, it’s advisable to consult with an employment lawyer to find out your options.

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