An employee with a one-month notice period in his employment contract has just tendered his resignation. He’s also stated that he won’t be coming into work again. Where do you stand legally?
Technically speaking, where an employee refuses to work some or all of their notice period, it amounts to a breach of contract on his part. Although you can point this out, the employee can’t be forced to turn up for work. In light of the employee’s refusal, you could try to claim damages for the breach of contract through the civil courts but in the vast majority of cases such legal action is expensive, time-consuming and generally not a worthwhile exercise.
There are two things you could do that may persuade the employee to keep to their side of the contract.
- You could remind the employee that if he doesn’t work out his notice period he won’t be paid for its duration – this might focus the employee’s mind.
- You could try to negotiate a shorter notice period with the employee instead, e.g. two weeks, so a replacement can be found and trained.
If the employee isn’t inclined to accept then as the employer you can’t demand that he comes into work. That said, just because the employee has adopted this stance it doesn’t mean that his employment contract has been terminated.
The contract remains live until either:
(1) the formal contractual end date, i.e. when the notice period would ordinarily cease; or
(2) the employer takes steps to bring it to an end early.
Tip 1 – In some cases, particularly where an employee holds certain skills or they are intending to work for a competitor, it may be in your interests to keep a contract ongoing for as long as possible. That’s because the employee will remain bound by its terms throughout their notice period. On the flipside, they’ll still be entitled to pay and, depending on your contract wording, may retain all other contractual rights. So you will have to weigh up any decision on a case-by-case basis.
Tip 2 – If you decide to allow the employee to leave without working their entire notice period, don’t let them have the last word. Confirm in writing that you have released them from their notice period early. This brings their contractual rights to an end and means you won’t have to pay them for the unexpired part of their notice period. It also prevents the employee from alleging that you converted their resignation into an unfair dismissal. Use our early release from notice letter.
In our Toolkit, we have a one-off increase to holiday entitlement letter and an early release from notice letter to ensure that you do not fall foul of the law. You can also, of course, contact us and talk through what you need to manage situations such as this, including booking a free one-hour consultation (phone or face to face).