An employee who has handed in her notice

[Zoe Miller]

Hi,

We have an employee who has handed in her notice. She has given a notice period of 2 weeks. However, our terms, as stated on her contract are one-month notice (see below). She says she wasn't given a revised contract. After a year, she received a pay rise. Her job role hadn't really changed. So should she have had a new contract, upon completion of a probationary period, or after the first year? Or is it not necessary? Is she right in saying she only has to give 2 weeks?

4. PROBATIONARY PERIOD
4.1. This post is subject to the completion of a six-month probationary period. During this period we shall review with you, your on-going performance and suitability. If we feel it necessary we may extend the probationary period with your knowledge, or where you prove to be unsuitable to terminate your employment within or at the conclusion of the probationary period. At the end of this period if your performance is of a satisfactory standard your appointment will be made permanent. During this period, one week’s written notice may be given by either party to terminate the contract.

5. NOTICE PERIOD
5.1. After the successful completion of any probationary period, your employment may be ended by you giving the Company one month’s written notice. The Company is obliged to give you the statutory minimum amount of notice before terminating your contract. Refer to section 13 of the Company handbook.

Thanks in advance.

 

[Sheila Shaw]

Notice
She is in breach of contract by not giving you the months' notice that is stipulated in her contract. This is always a difficult situation for employers. It may be that she hasn't realised that she needed to give a month rather than 2 weeks. You could speak to her to see whether she was aware and whether she would be prepared to work the full month to allow you to progress recruitment, handover, etc. If, however, she is determined to go sooner and you try to hold her to the full month, you can be pretty sure that she won't work well, if at all, during that time. You could theoretically make noises about breach of contract, but it is rarely worthwhile for an employer to pursue such a claim in these circumstances (unless you can demonstrate that loss/damage has been caused by her giving short notice. In reality, a firm word about your disappointment that she has left you in the lurch and an explanation of the problems that this lack of notice has caused to you and her colleagues is about as far as you can go.

Amendments to contract
Employers are require to provide written confirmation of any changes to main terms of employment within one month of the change taking effect. There is no need to re-issue the whole contract - simple written notification of the change will suffice. In the absence of any change beyond the successful completion of the probationary period, it would not have been necessary for you to issue any new contractual documents. A letter/other written confirmation of the pay rise would have been enough.

 

[lesliedocherty]

Employees don't care, there's really not a lot you can do, as annoying as it may be, if you wanted to sack her then you're bound by the months notice, ive had it numerous times, we eventually changed our contracts to 2 weeks notice as no employee ever worked their 4 weeks.

 

[GraemeL]

Employees don't care, there's really not a lot you can do, as annoying as it may be, if you wanted to sack her then you're bound by the months notice .

Exactly.
Learn from this and state in your future contracts that references will only be given if the notice periods in the contract are worked in full

 

[lesliedocherty]

Exactly.
Learn from this and state in your future contracts that references will only be given if the notice periods in the contract are worked in full

I am amazed the amount of employers who do not ask for a reference, only been asked once in the past 10 employees

 

[Employment Law Clinic]

Why not tell her that unless she serves her full notice, to her full ability - to the satisfactory standard that allowed her to pass her probation - that her final pay will get stuck in accounts for a few months?


You won't be withholding the final pay, just delaying the payment of this, as her lack of notice caused a disruption to the normal procedures, and that will require some reviewing to ensure the final payment is accurate.



Karl Limpert

 

[paulears]

Amazing! She's worked for you, presumably as a good employee, and all you can think about is trying to penalise her for leaving you in the lurch. Two weeks or 4 weeks, what's the big deal - she probably has holiday due in the year, and you can do without her for 4 or 5 weeks a year, so why not wish her well and let her go. Do you really want her to be working for you when she's cross you've been mean and petty? What fun she could have. Blackmailing people for references and trying to delay her pay is pathetic and childish treatment. She could of course just phone in sick - you're rather forcing this on her.


Does she perhaps have any accrued holiday time owing - nobody mentioned that? Contract wise - is it possible you did not give her a contract? Do you have it with a signature? That's it really isn't it.

Perhaps you didn't tell her how important she appear to be to the business?

 

[Employment Law Clinic]

Amazing! She's worked for you, presumably as a good employee, and all you can think about is trying to penalise her for leaving you in the lurch. Two weeks or 4 weeks, what's the big deal –

…


She could of course just phone in sick - you're rather forcing this on her.

To be pedantic, it’s not February, so a month’s notice would provide somewhere between 4 & 5 working weeks – always more than double the two weeks being given though.


I can’t conceive how an employee could be a “good employee” if they are willing to ignore the notice periods, or go sick for their notice period – although going sick would suggest they won’t be available to commence a new job, so what benefit would it serve the employee.

Does she perhaps have any accrued holiday time owing - nobody mentioned that? Contract wise - is it possible you did not give her a contract? Do you have it with a signature? That's it really isn't it.

,

It’s feasible that the employee will have leave due, but this is something that the employer has the ability to manage – like the normal employment patterns for their staff.

Why have notice periods at all, if they can be ignored by employees, but no doubt used by them if they wanted to make an employment tribunal claim. (Employers get really annoyed when they have to give a month’s notice to a skiving employee, who has accrued lots of warnings, but the contract requires a paid notice period for dismissal.)

For whatever reason (none advanced in the opening post, and Zoe hasn’t returned to comment further), the employer has raised the notice period (or lack of respect for this) as a concern. The fact they haven’t returned raises questions about the importance, but perhaps the fact they opened an account & posted at all is because the lack of notice would cause a difficultly. On the basis of this, I would suggest enforcing or encouraging the notice period is worked, so far as reasonably practical.



Karl Limpert

 

[Ione]

Dear Zoe,

In addition to the posts placed above, I would suggest you think whether it is worth enforcing the notice period in your current case or pursue a claim against the employee. Surely, it is not great to have such situation, but you have got a lesson. Perhaps, it is worth to add a penalty clause to all your employment agreements for the breach of a notification period as well as to add a wording suggested by Karl - "unless she serves her full notice, to her full ability - to the satisfactory standard that allowed her to pass her probation - that her final pay will get stuck in accounts for a few months"

 

[paulears]

My view is that every business loses employees to somebody else, but they also TAKE employees from somebody else - so we would all want our new staff to start as quickly as possible, but also seek to delay those going - who, it must be said, have changed their loyalty status already. Do you trust somebody who you are being restrictive to, to still think you are a decent employer?

Sure - in this ideal world, everyone gives 4 weeks notice, but the reality is they do not! A colleague was told that attending his mother in law's funeral was going to be unpaid. Next day, they asked him to please come in to work at the weekend as another member of staff had been given the Sunday off to get to Heathrow early on Monday for his holiday flight. Next wednesday, his day off, he is doing the induction training for a rival firm, with the intention of starting his accrued annual holiday that he didn't take because his firm were very busy, as his notice - so his boss will get 24 hours notice of him starting with the rival - and he damn well deserves it. Being an employer does not give the power to behave shabbily.

 

[The Byre]

Amazing! She's worked for you, presumably as a good employee, and all you can think about is trying to penalise her for leaving you in the lurch. Two weeks or 4 weeks, what's the big deal - she probably has holiday due in the year, and you can do without her for 4 or 5 weeks a year, so why not wish her well and let her go.

This!

If someone does not want to be there, forcing them against their will is a very, very stupid thing to do!

 

[Gecko001]

Employees talk to each other. I know as I once was one. This employee will no doubt tell other employees about what she is doing. She obviously knows that her notice period is one month and yet she is just doing whatever suits her (and her new employer no doubt). Expect more employees to follow her lead in the future.

 

[Newchodge]

To be honest I would recommend letting any employee who is leaving go as quickly as possible. If they are in a job which isn't critical to the business it should be possible to cover for their absence, as you would if they were ill. If they are critical to the business there is a danger they may cause harm during their final phase.

 

[Bushman]

I agree with Cyndy, I like to get them out of the door as soon as possible. However if you just let it go it sets a precadent for other employees who will then think the rules don't apply to them either. I make it quite clear that if the proper notice isn't given their unwillingness to follow company procedures will be mentioned on any reference that is given.