Even when someone resigns and there is no difficult termination of their employment, their notice period is not necessarily problem-free. Here are seven common queries we are asked by small and medium-sized businesses relating to notice periods.
What can I do if someone walks out without working their notice period?
If someone does this, you don’t have to pay them for any work not completed. You can also reflect their decision to walk out in a reference (a reference doesn’t have to be good, it must just give an accurate overall impression of the candidate. If someone walked out without working their notice this is factual information and you can use it in a reference if you wish).
You can also possibly sue for breach of contract, however with most roles you will have incurred no/minimal financial loss as a result of their breach so this is unlikely to be worth it.
What if someone wants to leave early?
You can certainly release someone earlier than their full notice. You would not have to pay them for any notice not worked, and if someone doesn’t want to be there, they are unlikely to be productive anyway so it may be worth doing that. If you refuse, there is of course a risk someone may walk out anyway – see above for your options in that event.
Can I require someone to take outstanding holiday during their notice period?
Yes you can. Many employers have a clause to that effect in their contracts, however even if not, you can require someone to take holiday during their notice period, as long as you give them twice as much notice as the duration of the holiday you need them to take. For example if someone has a week’s holiday to use up, you will need to give them two weeks’ notice to take it.
If someone requests to use up their holiday in order to reduce the amount of notice they need to serve in the office, you can refuse this as you could any normal holiday request.
What if someone is disruptive and unhelpful during their notice period?
You may find that a disgruntled employee is causing problems in the office. They may be grateful of an option to leave earlier and start work with a new employer sooner than they expected, in which case you can mutually agree to end employment. However if they are not keen on leaving sooner, and you don’t want them around, you will need to either place them on garden leave or pay them in lieu of notice and terminate their employment immediately (see here for more information about these options).
Someone working their notice has gone off sick, what can I do?
Although you may well have suspicions that sickness absence during a notice period is not genuine or strictly necessary, there is nothing additional you can do in these circumstances. Check your absence policy and contract of employment carefully. The fact that someone is serving their notice makes no difference to the circumstances in which you can take action in the event of sickness absence. If someone’s absence is self-certified for the first week and covered by a fit note subsequently, your options are very limited. If you pay enhanced sick pay, you can check the terms and conditions and see whether you have an option to withhold this, but usually this is unfortunately something you usually just need to tolerate.
Can I discipline or even dismiss someone during their notice period?
Yes certainly. Your disciplinary procedure will still apply to someone working notice, so if their behaviour warrants a disciplinary process, you can go ahead with one if you wish. Of course you may decide that there is not sufficient time left to make it worthwhile, but in the event of serious misconduct, which you may wish to reflect in a reference, you can and should treat this just as seriously as you would for someone not working their notice. You could even summarily dismiss someone for gross misconduct if the circumstances meant this was appropriate.
What notice pay do I have to give someone who hands in their notice not to return after maternity leave?
If you have an employee on maternity leave or any family leave who has decided not to return to work, he/she must give the appropriate notice required by the contract of employment, or statutory notice if there is no contractual provision. If they have timed the notice in such a way as to ensure they don’t need to return to work and will be on maternity/other family leave for the duration of their notice period, there is a question about what to pay them.
If they are on the minimum statutory notice, then you must pay them in full at their normal pay rate, even if they won’t return to work during the notice period and would normally only be getting statutory maternity pay/the equivalent, or no pay at all. However if their contractual notice period is at least a week longer than the statutory minimum you would need to give to terminate employment, you only need to pay them whatever they would have received during that period anyway, i.e. probably statutory pay or no pay at all. This is one of those employment law quirks you just need to accept as being a bit of an anomaly!
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