The employment relationship is based on the concept of ‘the offer and acceptance of work’, however there comes a time when the relationship will come to an end, with notice periods being served to end employment. Under current legislation there is a need to document the notice requirements in the employment contract, which both parties need to adhere to when there is an intention to bring the employment contract to an end. Both the employee and employer are normally entitled to a minimum period of notice on termination of employment.
The notice period is determined by either the statutory provision or specified by the employment contract, and will becomes effective when there is an intention to bring the employment relationship to an end. The details of the notice periods should be one of the main terms and conditions of employment and be included in the employee’s written statement.
Statutory notice is defined as the minimum legal notice that an employer must give:-
- one week’s notice if the employee has been employed for one month or more, but less than two years; or
- two weeks’ notice if the employee has been employed for two years, with an additional week’s notice for each completed years’ service, up to a maximum of 12 weeks.
For an employee, the statutory notice they must give their employer is a minimum of one week’s notice if they have worked for over one month. This will not increase for longer periods of employment, therefor it is important that employers detail their notice requirements in the contract, which can be greater than the statutory notice periods. Ignoring this could result in an employee leaving at short notice, resulting in the employer being under resourced while they search for a replacement.
When an employee serves notice this does not have to be in writing however, giving notice verbally may not always be clear and may not reflect the intention of the employee. Therefore, in order to avoid ambiguity, the employer should always ask the employee to confirm their resignation in writing to make it clear that they are terminating their employment.
If the employer is terminating the contract, due to dismissal or redundancy, then this does need to be in writing, clearly specifying the reason and date of termination.
It is important to note that once notice has been given, either by the employer or the employee, it cannot be withdrawn unless both parties agree. If an employee serves notice of resignation and then decide that they would like to rescind their resignation, the employer can consider that the employee has resigned, unless this is mutually agreed.
Once notice has been served, either by the employee or the employer, the notice period is effective on the day after the notice was given. For example, an employee writes to the employer serving notice on a Monday, then the notice will start on the Tuesday. This raises the question, what happens when he employee posts their resignation letter dated on the Monday and the letter is only received on the Wednesday? The employer can accept the date of notice being served as being the date of the letter, i.e. on the Monday in this example.
The employer may require the employee to stay away from work during the notice period. In employment terms, this is known as ‘garden leave’ and is often used to stop employees working for competitors for a period of time or prevent the employee from accessing sensitive information. During this period the employee is still covered by any contractual duties, for example confidentiality, until the end of the notice period. The employee can also be brought back to work if needed.