Employees not working notice periods—what you need to know

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, 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.

Well, how about we discuss not working full notice periods rather than mourn what could've been.

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.

Do you have to work your notice period?

Yes, employees will normally be contractually obligated to work their notice period. But sometimes it's not that simple.

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.

But, it's worth thinking about the leaving employee and what's best for them. If 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?

Are you risking the leaver saying unsavoury things about you to their allies in the business?

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.

Our advice is to be smart with notice lengths. Set each one according to the level of seniority of the role someone is in.

If someone is a junior, 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.

Not working your notice period in full

An employee with a month-long notice period in their contract might decide they don't want to work more than two weeks. In this case, it's best to make sure you include a clause in their contract that deducts pay for any notice your staff don't work.

Waive the notice period

If you think it's in your best interests, you might try to agree with your leaver to waive their notice, and terminate the contract with immediate effect. You wouldn't need to pay them for their notice in this case.

Ensure that you both sign any agreement—this way, you can avoid a later claim for unpaid wages.

If the employee was working on an important project before they gave you their notice, you might offer them an early notice termination if they finish the project to the high standard you want.

Once an employee hands in their notice, they normally want to leave as soon as they can. If you keep this in mind and negotiate with them, they will realise you're trying to create a situation that's best for both parties. Compromising is a sign of a strong leader, after all.

Not working notice period breach of contract

When staff sign their contract, they have a legal requirement to fulfil their notice. Of course, this doesn't always happen. You could take them to court for damages that your business will suffer because of them not working their notice period.

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.

Courts are unlikely to force staff to work their notice period.

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

Pay in lieu of notice (PILON)

With a PILON clause, you can end the employment before your leaver serves their notice, but you must pay them for their full notice period.

Garden leave

Some companies use garden leave when staff serve their notice. The leaver doesn't need to come to work, but you still pay them for their notice.

You might use garden leave if someone is leaving to join a rival business, or if the leaver working their notice could jeopardise sensitive data or affect work operations.