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Employee not giving the contractual notice period - what can you do?

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Q: An employee from the warehouse has just informed us he is leaving to work elsewhere but he wants to leave earlier than his contractual notice period of one month as he needs to start sooner and so he’s only giving us 2 weeks notice. What’s the legal position and what should we do?

 

A: This is not uncommon and sadly is one area where the employer is caught between a rock and hard place. Obviously you can’t force someone to attend work against their wishes. 

 

Technically you could sue him for breach of contract, BUT in the world of SME’s I have never been involved where this course of action has been taken – simply due to the commercial reality and practicality of the situation. The Courts almost certainly won't compel him to work the notice period but they can award damages for any losses suffered as a result of the breach. Such damages would normally be for additional costs incurred arranging alternative staff (such as agency costs) and any loss of profit suffered as a result of the failure to work the notice period.

 

How hard or easy it is to prove such loss will depend very much on the nature of things and the job the employee did but in all circumstances you are under a duty to take reasonable steps to keep your losses to a minimum. You would need to assess any financial loss from him not being there for 2 weeks to determine whether it is worth pursuing a claim. As I explained, making such a claim usually involves considerable time and expense so they are rarely, if ever, pursued by an employer.

 

As frustrating and annoying as it is, practically I think you are perhaps best just to let him leave with only giving 2 weeks notice rather than the contractual one month.

 

You may wish to try to change his mind and appeal to his sense of decency by making it clear he would be breaching his contractual notice period of 4 weeks - but if it means he will miss his new employment start date he may obviously not agree or want that.

Without you agreeing to him leaving earlier, he may either simply not show for work and/ or go on sick leave just to be awkward and it would be a sad ending to maybe what was a good relationship – something that might be important to you and / or him.

 

Re preventing this possibly arising in future with the remaining staff, we could amend contracts of employment to provide an effective remedy as a way of ensuring an employee works the notice period. Having the contractual right to guard against employees not giving any or enough notice would be the best deterrent - it should not only discourage employees from resigning without working the notice period but also give you an effective remedy if they do. This normally takes the form of a contractual clause permitting the company to deduct from an employee’s final wages an amount equivalent to what the employee would have earned during the period of notice they failed to work, so if they didn't work a one week notice period you could deduct one week's pay from their final wages.

 

It is important to note that if you do not have such a contractual right prior to the employee giving notice you could not do this in this instance as it would amount to an unlawful deduction of wages for which the employee could sue and which would also prevent you from recovering any losses suffered using another legal remedy.



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