Employee fails to give sufficient notice – is there anything I can do about it?

We’ve had the question over and over again, and many of you will recognise the scenario….your employee is supposed to give a month’s notice, but turns up this morning and tells you they have a new job, and their last day will be Friday! Realistically what can we do?

We’ve had the question over and over again, and many of you will recognise the scenario….your employee is supposed to give a month’s notice, but turns up this morning and tells you they have a new job, and their last day will be Friday! Realistically what can we do?

Without a decent employment contract….not a great deal. In theory we could go to court and seek an injunction to enforce the contractual notice period…..but we’re not going to do that, if for no other reason than the injunction itself would cost £5 – £10K by the time we’ve paid a barrister experienced in obtaining these things.

So that’s it then, nothing we can do? Well actually, no that’s not quite right and here are our top tips for making sure employees do what they are supposed to do when it comes to notice periods.

  1. Of course….if it suits us and isn’t too much of a problem, agree the earlier release, but do get the employee to put the resignation and request for earlier release into writing. Otherwise….
  2. Tell the employee, on commencement of employment via an induction, what will happen if they don’t give sufficient notice, and make sure this is reflected in the employee’s contract of employment. Points 3 to 5 below concern the potential consequences, but the very fact that you take time to articulate these to a new employee will in itself reduce the likelihood of the employee trying to leave without giving proper notice.
  3. Remind the employee of the notice they should give and gently inform them that the new employer might be needing a reference, and abandoning ship in breach of contract is not a great reference to have to give.
  4. (providing the employment contract states this) tell the employee (if it’s true) that because of the short notice you may have to charge the costs of temporary/agency labour or additional hours working to the employee – this clause should never be used as a punishment, but can genuinely be used where costs are going to be involved because of insufficient notice.
  5. (providing the employment contract states this), Tell the employee that if they leave earlier than they should, any outstanding holiday paid will be calculated just on the European regulated annual holiday of 4 weeks, not the UK minimum of 5.6 weeks.

Points 3 – 5 give an opportunity to negotiate with the employee for a longer period of notice – perhaps not full notice, but something more acceptable to the employer perhaps.

If an employer tries to enforce these points without having an express contractual right to do so it is again highly likely to lose any action taken by the employee for an unauthorised deduction of wages, worse still the action could give rise to an unfair constructive dismissal claim based on a serious breach of contract.

myHRdept have been constructing bespoke employment contracts for clients since 2002 and will take the time to write your contract carefully. From only £250 our contract drafting services are often less than a third of the costs of a lawyer drafted contract. Alternatively, contract drafting is included in the price of all of our Premium Plus retained packages.

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