An employee refusing to work their notice period presents a tricky challenge. At the heart of the matter is that none of us like change. If you never saw it coming it creates extra work for you and in the short term disrupt the day-to-day workings of the business in a way that is not really acceptable – you are allowed (for a moment) to be upset. Furthermore, you are probably experiencing a sense that you lost control of a situation. I can actually hear you asking the question “don’t our contracts of employment protect us from this”? Strip out your emotional response, calmly examine the situation and then move forward. Right now, it is about damage limitation to the business.
Understanding and Analysis
When an employee resigns stating they are not working their notice period you actually need a cool head. Remember, employees do make mistakes and errors of judgement. Why should the resignation process be immune to that. Simply put, not everyone resigns the right way! If that is what you are faced with then an emotional reaction showing; resentment, annoyance and bitterness are not benefiting anyone. Therefore, put those emotions aside. Your priority is the well-being of the business. Ask yourself a couple of questions:
- How important is this role to the business?
- Were you happy with the performance of this employee?
- Is it easy to replace this employee?
- How long could it take to replace this employee?
The answers to the above gives you an outline of how serious this situation is…and maybe helps you put things into perspective.
Next discuss with the employee why the rush? Why they are refusing to give notice? Are they being pressurised by their would-be new employer? Has something happened in their personal life? Worst-case, has something happened within the business and they want out?
If you can better understand their circumstance, show a modicum of sensitivity to it you may be in a far better position to negotiate things and ensure the business is not compromised. It could be letting an employee leave early is not such a big deal as first thought and the situation can be managed.
There are actually two types of notice period. Firstly, statutory notice; the minimum legal notice that can be given by an employee. Secondly, contractual notice; the amount of notice that the employer can set out in the terms and conditions of employment.
In terms of statutory notice an employee who has worked with a business for longer than a month but less than two years is obliged to give a minimum of one week’s notice. If an employee has worked continuously for two years, they are obliged to work two week’s notice. This increases by one additional week for each further year of continuous employment, up to a maximum of 12 weeks. If an employee has been in the business for less than a month, they do not have to give notice at all.
Contractual notice supersedes statutory notice and can be longer.
An employee that refusing to work the notice period detailed in their contract is technically in breach of their contract and they should be reminded of that. However, the only immediate consequence is the employer does not have to pay the employee for any part of the notice period not worked.
Legally, if the employee has breached their contract, they can be taken to court. It is an expensive, time-consuming process. It is highly unlikely the employee will subsequently work their notice period, but a business may be awarded damages for any losses suffered as a consequence of the breached contract. These damages though can actually be very hard to prove. Therefore, one should view legal action as a final option, only to be undertaken if considered to be of likely financial benefit to the company.
If an employee literally disappears the day they resign or during their notice period, one might assume they are not returning to work. Making this assumption though leaves an employer open to legal action from the employee. Therefore, don’t make any assumptions and instead attempt to make contact and see if they intend to return. In the event of sickness, the employee is entitled to the same sickness policy and procedures as any other employee within the business.
In short, options available to an employer when faced with an employee refusing to work their notice period are limited. Your employee may have a legal obligation to work their notice…it’s just there is not much there to help you enforce it!
Alternatives to Standard Notice Periods
There are some circumstances where a standard notice period is not worked by an employee and it is worth quickly outlining these.
It could be an employee is joining a competitor and as such, they are placed on gardening leave. They are not required to come to work. Their notice period is still paid and they can not join their new employer until the notice period is served.
A more ‘watered-down’ version of gardening leave is something called Pay in lieu of notice (PILON). This is where the employment is ended before full notice is worked, but notice is still paid in full.
In the case of both gardening leave and PILON, the employer has in theory a sense of control over matters.
There are of course cases where no notice is required on the part of the employee. For example, it could be both employee and employer are in mutual agreement to waive the notice period.
Of a more serious nature is where the employee resigns following a breach of contract by the employer. In such circumstances, they leave without notice. For example, a failure to pay wages to the employer would be considered one such breach. The employer is not obliged to pay for any part of the notice period not worked. However, they would likely be liable for compensation due to the contract breach on their part.
Having an employee refusing to work their notice period should lead to the obvious question of how you protect the business from this happening again. As you have seen above, your options are actually few and far between.
Firstly, you should ensure contracts of employment are regularly reviewed and that they do give you some legally permissible options to handle difficult resignations.
It is not unusual to see employment contracts with clauses stating the company may subtract from the employee’s final wages the amount they would have earned in the event their notice period is not worked in full. Likewise, some contracts have clauses stating employees not working their notice period face a wage deduction to cover the costs incurred, for example having to hire temporary staff to cover their absence.
These clauses may not actually be acted upon, but they may give encouragement to an employee to meet their contractual obligations.
Finally, consider what length of notice an employee should actually work. What is actually beneficial to both employee and employer. The temptation is to set long notice periods for all employees, thereby giving you ample opportunity to find replacement staff. Simply put though, that won’t work. You merely risk the incident of employees not working their full notice period increasing! And why try and hang-on to an employee longer than needed when they want to leave. It is much more pragmatic to determine notice period by seniority of the role.
Maybe your employee has literally walked out of the business before you opened their letter of resignation. Maybe you have been given a chance to talk and negotiate some kind of compromise on their notice. Regardless, you are probably having to look at filling a void in the business very quickly.
Start talking to people around you. Firstly, talk with those in the business who are having to pick-up the extra work. Thank them for their efforts, reassure them it is a temporary increase in the workload. Maybe liaise with more junior members of the team. Offer them support and remind them they have a chance to step up in the business and show what they are capable of. You need to be hands-on, supportive and above all else – positive. Your goal is for colleagues to feel empowered in the face of this opportunity and not overwhelmed.
Next start talking to HR, start talking to your recruitment agency and agree a plan for how you replace this member of staff as quickly and painlessly as possible. Discuss possible timelines and the recruitment process that best fits your demands. Even though you want to move quickly it is worth considering whether you need skills and attributes beyond what you originally brought in. The last thing you want is a repeat of this situation! Read our guide on how to hire staff quickly and take back some control of the situation.
Don’t be bitter, don’t be angry. If an employee chooses to burn their bridges with you, your options are actually limited. Instead, remember your focus should be on the business and successfully managing and facilitating change. As soon as an employee resigns they may wish to set fire to their desk, tell the boss what they think of them and storm out of the building with a couple of hand gestures, but as the employer you should be calm, and you should be trying to find a win/win scenario for all parties. Too often resignations are viewed with emotion. As the employer keep things in perspective and move forward with dignity. And if you happen to be the employee who is thinking how to exit a role, well read our guide on how to resign the right way. Trust me, it can be done without drama and burning your bridges!
About the Author
Simon Royston is the founder and Managing Director of The Recruitment Lab (A recruitment agency with offices in Aldershot and Brighton that offers employment services across Berkshire, Hampshire, Surrey, Sussex and beyond). Simon lives in Guildford and has worked in Recruitment for over a decade. He has a degree and a masters in psychology as well as a diploma in Human Resource Management. If you would like to know more about anything written in this blog or would simply like to express your own thoughts and opinions do not hesitate to contact Simon through The Recruitment Lab website.