For employers, managing employee resignations can be a challenge, and it’s crucial to understand the legal implications and requirements involved. Employers often want to know how to deal with an employee who refuses to work their notice period – can they do this, or can an employer force them to work their notice?
Employers may have purposely inserted a lengthy notice period into the employment contracts to ensure that they have sufficient time to recruit to replace the person leaving, or they need the employee to work their notice to meet deadlines and complete important tasks or projects.
Other times, an employee may resign, and the employer just wants them off the premises as soon as possible, maybe due to them having access to confidential information or clients or simply because they were a nuisance employee and you just want them gone as soon as possible.
Notice periods
As an employer, it’s essential to know the legal requirements and potential challenges associated with employee resignations.
Understanding the notice period and how it works is essential in maintaining a smooth transition and protecting your business interests.
Most, but not all, employment contracts come with a notice period. A notice period is a length of time outlined in the employee’s contract that they must give notice of their intention to leave. The minimum legal period is one week, but more senior roles will likely have longer notice periods (so a replacement can be hired and trained before the employee departs). Some employment contracts may be silent on the length of notice, or there may not be an employment contract in existence. In this scenario, the employee must give ‘reasonable notice’. For senior roles, this is often in the region of three months. Obviously, it would be much better to ensure that an employment contract is issued and notice is detailed in that document.
Employees should ideally give their notice in writing, either in an email or a letter, and it is a good idea to make this a contractual requirement in the employment contract. This avoids any ambiguity as to when or if an employee has resigned.
What can you do if an employee leaves and refuses to work their notice period?
This situation can arise in two main ways.
First, the employee believes that they have been treated so badly that the implied term of trust and confidence is breached or that there is some other fundamental breach of contract by the employer (such as failure to pay wages), which allows them to treat themselves as dismissed and to resign with immediate effect.
Often an employee in this scenario will detail their reasons for resigning and may look to bring a constructive unfair dismissal claim and a wrongful dismissal claim for their notice pay. In this situation, you should deal with their resignation as a grievance and ask them to reconsider their resignation while you deal with their grievance. This will help you to defend any Employment Tribunal claims. It would also be a good idea to ask for legal advice at this stage.
Second, the employee wants to leave so they can start their new job, or they just can’t be bothered to work their notice period. In this situation, employers often think that because the employee is breaching their Employment Contract by not working their notice period, they can sue the employee or force them to work their notice period. Unfortunately, this is not a realistic expectation.
Employers do not tend to suffer any ‘loss’ from an employee leaving early. Recruitment fees would be incurred anyway, other staff fill in, and it is rare for anything more serious to happen as a result of someone leaving early. Therefore employers struggle to identify any loss they have actually suffered when an employee leaves early, which means there is nothing to claim breach of contract for.
Courts would also be extremely unlikely to order an employee to complete their notice period; forcing someone to work for you is also unlikely to result in satisfactory performance and, therefore, a pointless exercise. The only real action an employer could take is that they do not pay the employee for any notice period not worked. Holiday pay would still be due in relation to holiday accrued to the termination date for the first 5.6 weeks entitlement under the Working Time Regulations. Contractual holiday in excess of 5.6 weeks could be withheld.
Maintaining a positive relationship with employees who are resigning can benefit your business, for example, in preserving your company’s reputation or maintaining connections for future collaborations. Equally, many employees will see the benefit of not falling out with their employer. Therefore, where an employee would like to leave early, you may decide to negotiate and agree on a reduction in their notice period.
What if you want the employee off the premises?
Employers may be concerned that an employee who has resigned could take confidential information, solicit clients or other employees, or cause damage during their notice period. It is therefore important to ensure you have a ’garden leave’ clause in your Employment Contracts to give you the right to send the employee home and prevent them from working for anyone else during their notice period.
This is a powerful tool for employers to protect their business. You also need to ensure you have confidentiality clauses and restrictive covenants in the Employment Contracts – particularly for sales staff or those who have developed relationships with your clients or suppliers. Again, this helps protect your business if an employee leaves as they prevent them from working for competitors or taking your staff and clients for around six months after they have left. Injunctive action can be sought if an employee breaches these contractual requirements and a claim for damages if, for example, an employee takes your clients in breach of these clauses.
How we can help…
Navigating employee resignations and managing the legal aspects can be challenging for employers. Open communication and a proper understanding of legal requirements are crucial in ensuring a smooth transition for both your business and the departing employee.
If you are facing a situation involving an employee resignation, a workplace dispute, or concerns about a potential constructive dismissal claim or the need for injunctive action, our team can provide expert legal support and guidance for employers, even in the most complex of cases.
Speak to one of our team on 0330 111 3131 or fill out our contact form and we will be in touch at the earliest opportunity.