What to do if an employee refuses to work their notice period

This guide was written by Employment Lawyer Toby Pochron on 21/10/2022. All information given was relevant at the time of writing.

Introduction to notice periods

Giving or receiving a notice is a necessary practice in order to bring an employment law relationship to a close. Typically, it does not lead to any complications and the relationship between the employee and employer is terminated gracefully. There are times when this may be fiery – perhaps notice is delivered in a dramatic or memorable way by burning all bridges with an old employer, but you don’t get too many of those. For the vast majority of the time, a notice is just a simple confirmation of the end date given by an employee or a confirmation of termination of employment (with reasons) given by an employer.

The purpose of a notice period, in essence, is to give sufficient time for both the employee and employer to find alternative employment or an alternative employee, respectively. However, notice can lead to complications where notice periods are not given or the employee refuses to work their notice period.

This does not always mean that a contract of employment has been breached. For example, an employer may have the right to pay in lieu of notice or the employee considers the actions of the employer to be a repudiatory breach of contract and therefore refuses to work their notice period. The employee may go on sickness absence throughout their notice period, or the employer may not want the employee to work all of their notice and have a disgruntled employee on their books for a few more months.

The purpose of this article is to delve into some of these complications with the aim of providing the reader with explanation of the law surrounding notice periods and the potential risks involved.

Statutory Notice Periods and Contractual Notice Periods

There are two standard types of notice period, statutory and contractual. Either form of notice provides both parties with adequate / agreed time to find a replacement or prepare for the termination of their working relationship.

A statutory notice period acts as a minimum notice threshold in which employers and employees must give each other before the employment is terminated. This is a right born out of statue and is always the minimum required.

A contractual notice period, on the other hand, is completely discretionary but cannot fall below the statutory minimum as otherwise the court will not recognise it as a valid clause in the contract. This means that a contractual notice period can be between the statutory minimum and an unlimited maximum.

For obvious reasons, it may not be a good idea to have lengthy contractual notice period, especially for junior positions, nevertheless, this is something for the employers to consider. It is certainly not one-size-fits-all but something that requires thought and consideration before implemented into a contract.

Statutory notice periods are as follows:

• No notice if the employment is less than one month
• At least one weeks’ notice if employed between one month and 2 years
• One week’s notice for each year if employed between 2 and 12 years
• 12 weeks’ notice if employed for 12 years or more.

Whilst we are on the topic of notice period length, it would be worth considering some of the advantages and disadvantages of having a long or short notice period.

Short notice periods

Advantages

• Prevents a negative atmosphere within the workplace if relationship with the employee is damaged.
• Prevents loss of productivity during notice period.
• Easier process to manage.
• Quicker start for replacement employee.

Disadvantages

• More pressure to find the right replacement.
• Lack of time for a smooth handover.
• Potential staff shortages.

Long notice periods

Advantages

• More time to find the right replacement
• More time for a smoother handover
• Avoids staff shortages

Disadvantages

• Less productivity
• Creates negative atmosphere
• Difficult process to manage
• Longer wait for replacement employees to start
• Higher payments made to an exiting employee

So, an employer may wonder how long they should set their notice periods for. Well, it’s all about balance.

Ideally, employers should not want to offer a considerably long notice period where it impacts productivity nor should they want to be giving a really short notice period and put a huge pressure on finding a replacement, which could negatively impact the handover process. It is also worth considering the job role; it is far more difficult to find a replacement for a manager with experience than it is for junior staff, therefore a longer notice period for senior positions would be more sensible.

How to deal with an employee who refuses to work their notice period

A frequent question many employers ask is what do we do when employees refuse to work their notice period? You cannot physically force someone to work in your business, but employers have a few options when an employee does not hand in a notice or refuses to work their notice period.

Repudiatory Breach

The first step to consider is whether the employee has the right to not work their notice period. This would be the case if there is a repudiatory breach on behalf of the employer and the employee has accepted the breach.

Repudiatory breach is a conduct that is so severe, the employee can treat the contract as terminated. For example, racism by the employer could lead to the acceptance of a repudiatory breach by the employee and therefore consider themselves dismissed (constructive dismissal). In our example, the employee would be able to bring a claim for unfair dismissal, breach of contract, race discrimination, and they would not be required to give any notice.

Garden Leave 

Indeed, there are scenarios where the employee simply disappears from the face of the earth or refuses to work their notice period for no justifiable reason. In such circumstances, if the employee’s contract has a garden leave clause, the employer could seek an injunction from the courts to keep the employee out of the market.

The employee would remain entitled to their contractual pay but will not be able to start employment with another employer until the notice period (and restrictive covenants) expires. In the absence of a garden leave clause, the employer may seek an injunction, but the court will consider whether the employee has an implied right to work rather than whether the employer has an implied right to put the employee on garden leave.

Breach of Contract

The next option would be to bring a claim for breach of contract against the employee in the civil courts. However, such claims are extremely rare as it is the employer’s obligation to show that it has suffered loss as a result of the early departure. This can be very difficult to prove but a successful example would be a scenario where the employee is highly critical to the delivery of a project and the employer had to hire a contractor to complete the project. The employer would be able to recover the extra costs associated with the hiring of the contractor as damages.

An employer cannot recover recruitment costs for the new employee as these would always be suffered. But an obvious loss would be where an agency worker or contractor was brought in at a higher cost or with a period of downtime. So, the difference between the departing employees’ wages and the higher contractor costs would be a claimable loss for the period of the notice.

Deduction of Wages 

The two above options are extreme measures and only used by employers who fear that the employee may join a competitor or leak information to competitors.

Where an injunction is not an option or there is no obvious loss, the third option would be to follow the advice of the animated children’s movie Frozen; let it go. It is not as terrible as it sounds. This is partly because you will not have to pay the employee their notice period.

The best approach to take in this situation would be to inform the employee that they are contractually obliged to provide an amount of notice, if they continue to refuse, explain that the employer will not pay their notice pay as they would be in breach of contract. If the employee leaves after that, the employer has fulfilled its duty by reminding the employee of their contractual obligation. If the employee brings a claim for unlawful deduction of wages, the employer should have good explanation why the notice pay was not paid.

In addition, think back to the disadvantages of notice periods mentioned earlier. Is it wise to have an employee within the workforce who does not wish to be there? Imagine an employee with no motivation to work lingering around the workplace all day doing nothing apart from constantly bragging about the greatness of his new employer and bringing down the morale of the workplace. Not a pretty sight.

Payment in Lieu of Notice (PILON) 

This is precisely why employers implement a PILON clause in employment contracts. This allows them to pay the employee in lieu of notice period and terminate their employment with immediate effect (or at a chosen date) and avoid some of the disadvantages of notice periods discussed above. It also gives the employer the discretion to exercise PILON; the employee cannot demand it. Therefore, when the relationship is damaged, PILON would be a practical option, but if the parties believe they can end their relationship on good terms, requesting the employee to work their notice period could prove to be beneficial. We recommend most of our clients to have a discretionary PILON clause in their contract of employment as a precaution for the above reasons.

Learn More: Time off in lieu (TOIL) explained

Can employers change notice periods?

Another frequent question asked by employers is if the notice period can be changed during the course of employment or even during the notice period itself. This is not possible unless the employee expressly agrees with the extension as it would be considered a variation of contract.

Merely obtaining a verbal agreement may be sufficient but can be difficult to prove should a dispute arise. Therefore, it is important to have a written agreement for any extension of notice period. If an employer extends a notice period without express consent from the employee, the employer would be in breach of contract and the extension would be unenforceable.

In the absence of an agreement then the employer would need to engage with the employee in a contractual consultation to seek an agreement or to explain why a change was critical to the business.

We hope that this article has answered the frequent questions surrounding notice pay. We have provided many examples and different approaches to take in certain scenarios but please note that the legal outcome of each situation is strictly fact-driven.