It can be a sad time for an employer when an employee hands their notice in. Perhaps it’s someone who’s worked for you for a long time, or it could be someone who’s been with you a matter of months and you’ve really seen them develop.
Whoever it is, there might be a number of questions that you have as an employer about a notice period and how it works.
When an employee hands their notice in, you should check their resignation letter and make sure that the notice they’ve given matches the minimum you’ve set out in their contract of employment. If you haven’t mentioned a notice period in their contract, you’ll have to look at the statutory notice period as set out by the government.
There are two types of notice period: statutory and contractual. Statutory notice is the legal minimum period that your resigning employee has to give you, which is one week. It doesn’t matter how long they’ve been with you – they still need to give one week’s notice.
The statutory minimum notice that you have to give to your employees when dismissing them increases the longer they’ve been employed. For example, by the time the employee has got to six years of employment, the employer’s minimum notice period for dismissal is six weeks – but this doesn’t apply if they resign.
You and your employee can agree in their employment contract that they must give a longer resignation notice period – for example, a month’s notice instead of a week.
You could even agree that this period will increase the longer they’ve been employed to reflect your minimum notice periods. But in the case of a resignation, it’s more about considering how long it’ll take you to replace them, rather than looking at their length of employment.
Is it a very specific job role that only a few people will be able to do? Are the candidates likely to be on longer notice periods? How long will it take to train the new employee? Would you want the resigning employee to be involved in the handover?
Although in some positions it may be good to have a longer notice period, it’s worth bearing in mind that if someone has decided to leave then their performance might take a hit and so a longer notice period could end up doing more harm than good – especially as (if agreed) you’d need to pay the employee in lieu of their notice period if you wanted them to leave earlier.
As we’ve said, you’d need to agree to this in the employment contract, but it’s possible to pay someone in lieu of their notice period so they can leave the business earlier. However, the employment cost to your business would be very similar because you’d still need to pay their notice wages.
You can’t make your employee leave before their notice period is up without agreeing to pay in lieu because this could be treated as a dismissal instead of a resignation – which could even lead to a claim of unfair dismissal.
However, if your employee comes to you to talk about shortening their notice period, you can both come to an agreement you’re happy with. You may agree on certain conditions, like asking them to complete handovers before they leave or to complete their current work before they head off. You should also remind them that, as they’ve asked to shorten the notice period, they won’t be paid for the notice they don’t work.
If your employee doesn’t give you proper notice then this could mean you have a breach of contract claim.
Some fixed-term contracts don’t require notice to end on the final date because this date is clear in the contract. However, if the final date is only indicated rather than certain, you’ll need to allow for statutory notice.
If an employee decides to give a longer period of notice than set out in their contract, you may have to allow it. If you try to make them leave earlier (e.g., on what should have been their final day) then it could be treated as a dismissal, and they may even bring an unfair dismissal claim. You could potentially try and agree to an earlier date, but this may be tricky or expensive to agree if they’ve purposely given a longer notice period.
If an employee has handed their notice in but you don’t want them to leave, you may be able to sit down with them and try to convince them to stay.
First, you’ll need to talk to the employee and find out their reasons for leaving. It should be an informal chat to find out if there’s anything you could offer them that may persuade them to stay. This could be an increased salary, changing the job role, switching teams or departments, offering opportunities to grow and progress or offering them additional training in something they want to learn more about. If your employee has handed their notice in because of their commuting distance, you could ask them if they’d like to work from home some of the time.
Whatever is agreed upon should be noted in a document. A copy should be handed to the employee and a copy should be kept in your records. You will also need to follow through on your promises, for example, you shouldn’t offer them training and decline to see this through later on. You should also bear in mind that any beneficial terms you agree with them could arguably set a precedent for other colleagues or new recruits in the future.
If your employee is unhappy at the company because of the people or the job role, and you feel nothing you can offer will change their mind, then it’s probably not worth asking them to stay. You need to be sure that what you can offer them will change their attitude to the job. Otherwise, they’re likely to hand their notice in again in a few months. However, depending on the circumstances, you may want to take advice (from someone like us!) about offering to set up a grievance meeting, particularly if it seems like they may bring a discrimination claim or a constructive unfair dismissal claim (alleging they were treated badly and forced out).
It can be hard to lose an employee, but we hope that we’ve outlined all the information you need to know on notice periods and what rights both you and your employees have.
If you need help retaining employees or simply some HR advice for employers our HR consultants have got your back from start to finish.
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