My employee doesn’t want to work their notice period – what can I do?
In the midst of the ‘great resignation’ it’s a common problem, when an employment contract requires an employee to work a month’s notice, but employees have other ideas and won’t work their notice period, leaving their employers short staffed or facing extra cover costs. (BBC: the great resignation.)
The legal situation arising from an employee who doesn’t want to work their notice period.
An employment contract is a legally binding agreement on both parties, so technically one can sue the other for breaches. In reality this hardly ever happens, particularly below executive level. To win an action the employer would need to show that the breach happened, and demonstrate financial loss resulting from that breach. Financial loss might be quite hard to show for employers who have other employees who can cover the errant employee’s work without additional cost. Given the amount of time and effort involved, a legal action won’t often be a preferred route for employers.
Contractual routes to pressure employees into working their notice period
myHRdept draft employment contracts for employers, and most of our clients opt to include a clause that requires employees to pay for additional costs incurred arising from an employee’s failure to work their notice period. Additional costs could include, for example, the cost of an agency worker, an interim hire, or overtime costs. If your employment contracts don’t have this clause, this is something of a hindsight issue, though you might consider an HR outsource contract with myHRdept to head off the problem for your next leaver! No one likes to be hit in the pocket as a consequence of their breach, and these clauses can be a useful deterrent.
References for an employee who doesn’t want to work their notice period
Another pressure point might be the employment reference – an employee who leaves without giving contractual notice may have this fact reflected in their employment reference, and this may make them less attractive to their new employer, who may surmise that the same action might be applied to them by the employee in the future. It’s important that references are factual and reasonable, but listing the employee’s breach of contract as a reason not to re-employ them is not in itself an unfair act – at myHRdept, we routinely prepare references for our client’s employees. If an employee is made aware that they risk a poor reference because of their proposed breach of contract, they might well reconsider their position and agree to work longer.
Powers of persuasion – agreeing a half-way house solution for an employee who doesn’t want to work their notice period
If an employee is determined not to work their notice period, it may not be possible to agree a deal with them, but most people are inherently reasonable and (providing their employer is also reasonable) might be open to a halfway house solution, particularly if the employer patiently explains the problems an early exit would cause. It may well be in the employee’s interests to agree to a shorter period of notice for other reasons too – the employer may point out the contractual risk or contractual remedies (if they have such clauses in their employment contracts), but this needn’t be too heavy handed. Similarly, an employer may make it clear that they want the employee to leave with a great reference (providing it’s true of course) and that this would be the case if the employee stayed a little longer and didn’t leave their employer in the lurch.
As ever with employee issues, agreement is the optimal solution, and even if the employee doesn’t work their full notice period, some notice may be better than none.
Taking a task-based approach to an employee who doesn’t want to work their notice period
If an employee makes it clear that they would prefer to leave earlier than the end of their contractual notice period, some employers may opt for a task-based approach. This could involve agreeing with the employee a set of tasks which, once completed to the employer’s satisfaction, would enable the employee to leave and take up their new position. Output is, in our long-held view, far more important than input, and this approach can be highly productive for both parties – a great incentive for an employee to work hard to leave earlier than contractually allowed, while delivering valuable work prior to their departure.
Before closing this topic, it would be remiss of us to not mention the value of properly conducted exit interviews, another important function myHRdept provide for our clients as a part of our HR outsource services. Having a third-party HR company like myHRdept conduct these enables employers to gather valuable information about the employee’s experiences, and often employees are more likely to be candid with us than they would be had their employer conducted the interview themselves. If the employee was harbouring grievances this may explain their desire to hasten their exit, and if those grievances appeared to be justified, the employer has an opportunity to address a problem that might just deter other employees from leaving.
HR Support from myHRdept
If you need help with employment law compliance, or just want a knowledgeable advisor on hand, myHRdept’s HR support services are ideal. Now in our 20th year, we include in our outsourced HR packages a bank of support hours which could be used for anything HR-related and our staff includes a former practicing employment lawyer, and a recruiter to help fill our client’s vacancies. For the last two decades we’ve been drafting employment contracts and advising employers on their rights, enabling them to use employment law as an enabler, rather than a barrier. While other HR companies market through fear, myHRdept has a refreshing solutions based approach to employer’s people challenges.
If you’re thinking of outsourcing your HR or employment law needs, why not contact myHRdept? Call us on 01628 820515, email us at email@example.com to discuss your requirements, or contact us via our website and we’ll call you back.