employee breaking notice period

Discussion in 'Employment & HR' started by PBDirector, Jul 19, 2013.

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  1. PBDirector

    PBDirector UKBF Newcomer

    31 2
    Hi,

    One of my employees has 8 weeks notice in her contract. She has handed in her resignation today, but has stated that her new job starts on {date} - where {date} is in 4 weeks time, and she's not owed sufficient holiday to adjust it.

    If it suited both of us, I would just let her go with no arguing - but we're already short staffed on current contracts and 4 weeks may not be enough time to find a suitable replacement. It'll have a critical impact on the business.

    What are my options?

    Thankyou!!
     
    Posted: Jul 19, 2013 By: PBDirector Member since: Jun 6, 2013
    #1
  2. pen2670

    pen2670 UKBF Ace

    419 104
    Just tell her that she is contractually obliged to give 8 weeks notice and so her final date with you will be x.

    Then cross your fingers and have a back up plan in case she leaves early anyway, goes on the sick, is so unhappy she has a negative impact on her colleagues / your customers, etc.
     
    Posted: Jul 19, 2013 By: pen2670 Member since: Mar 1, 2012
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  3. kulture

    kulture Moderator
    Verified Business ✔️

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    Unfortunately it is not always wise to force people to stay longer than they want to. Whilst you are in your rights to try to force her to work her notice, you may get more out of her if she feels in your debt by you letting her go early. It is possible, if played correctly, you might get her to compromise and work extra hours, weekends, or even six weeks notice. Persuasion and working on guilt trips may get more than force.
     
    Posted: Jul 19, 2013 By: kulture Member since: Aug 11, 2007
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  4. Steve Sellers

    Steve Sellers Verified Business ✔️

    4,048 1,210
    Agree with Kulture.

    I mean if the new employer her want her that much I am sure they would wait, equally she shouldn't have told them she can start in 4 weeks. As much as it is a pain, and you shouldn't have to, letting her go may be the best business decision you can make (rather than one purely based on law).
     
    Posted: Jul 20, 2013 By: Steve Sellers Member since: Aug 7, 2011
    #4
  5. Karimbo

    Karimbo UKBF Legend

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    I agree with kulture. The notice period isn't really workable if employee wants to leave early.

    I would say just speed up with your recruitment and get a replacement ASAP. You may have to deal with being understaff for the time being if former employee leaves early.
     
    Posted: Jul 20, 2013 By: Karimbo Member since: Nov 5, 2011
    #5
  6. nelioneil

    nelioneil UKBF Ace

    699 101
    It brings a good question. What is the point of having "notice periods" in contracts if they are broken (usually by the employee), and there is little to be done about it? I mean, I can't think of many employers who would go to sue an employee for breach of contract if they leave during their ending notice period, rather than after.
     
    Posted: Jul 21, 2013 By: nelioneil Member since: Jan 22, 2013
    #6
  7. John_

    John_ UKBF Newcomer

    37 4
    I have thought about this in the past, what the worst can you do to the employee if she doesn't complete her notice, sack her? She's already resigned. So I think the best solution is let her serve the 4 weeks notice and everyone can leave in good terms. Who knows, you might need to ask her for certain things in the coming weeks/months, and she if she left in good terms she probably more willing to help out. Anyway for what it worth, good luck.
     
    Posted: Jul 21, 2013 By: John_ Member since: Mar 5, 2012
    #7
  8. PBDirector

    PBDirector UKBF Newcomer

    31 2
    Hi Everyone,

    Thanks for your contributions.

    It confirms what I thought - my options are zip nada nil.

    The perils of being a small business person, eh - notice period clauses [unenforcable], restrictive covenent clauses [unenforcable], short working hours clauses [unacceptable to employees, so leave us in a situation where we jeopardise the entire company as we can't afford to make a role redundant].

    ho hum. Thanks all.
     
    Posted: Jul 22, 2013 By: PBDirector Member since: Jun 6, 2013
    #8
  9. PBDirector

    PBDirector UKBF Newcomer

    31 2
    ...which raises an interesting [hypothetical] question...

    Would it be possible to write a legally enforceable contract term in which the employer is entitled to monetary compensation for any part of the notice period unworked?

    I guess the problem is that you can't deduct from wages if they haven't accrued any - so I guess the smart employee would just fail to turn up the day after pay day.

    ...Which would leave you with a small claims court claim for the money. Nasty, but if they are prepared to leave you understaffed and putting the business at jeopardy it does rather even out the balance of power somewhat.
     
    Posted: Jul 22, 2013 By: PBDirector Member since: Jun 6, 2013
    #9
  10. Green Bull

    Green Bull UKBF Newcomer

    6 2
    You say you are a small business owner. Have you tried having a frank and honest discussion with her, highlighting your issues. It may be that after working closely with you for some time, she wouldn't want to put you into a difficult situation either and would be prepared to compromise.
     
    Posted: Jul 26, 2013 By: Green Bull Member since: Jul 26, 2013
    #10
  11. Karimbo

    Karimbo UKBF Legend

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    Can employers state in the reference that employee left the company without fulfilling their notice period?

    If so, that may be your bargaining chip
     
    Posted: Jul 29, 2013 By: Karimbo Member since: Nov 5, 2011
    #11
  12. PBDirector

    PBDirector UKBF Newcomer

    31 2
    Hi Bull/Karimbo,

    Bull:
    Yes, this is sensible advice. I have had this conversation with her, and she said "I really don't want to leave you in the lurch"/ "I figured if I gave you 4 weeks and ensure my project was handed over, that'd be enough". I expressed that she can't unilaterally decided to change the contract, and that it was here responsibility to inform her new employer that she was under contract. This was taken on board with an obvious 'what you're saying isn't changing the fact that I'm starting my new job on {date x}

    Karimbo
    I don't know what the law says, but I think that's the thing isn't it - you just say "employee {x} worked from date a to date b, and did not complete her notice period".

    It seems to be the case that most people don't care about that once they've got a new job lined up.
     
    Posted: Jul 29, 2013 By: PBDirector Member since: Jun 6, 2013
    #12
  13. Newchodge

    Newchodge UKBF Legend

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    But usually the reason people ant to leave early is to start their new job, so the new employer is unlikely to be bothered about this!
     
    Posted: Jul 29, 2013 By: Newchodge Member since: Nov 8, 2012
    #13
  14. Tim R-T-C

    Tim R-T-C UKBF Enthusiast

    547 64
    Although if the employee told them that she had 4 weeks notice requirement when she actually had 8 they might think this is a little deceitful.
     
    Posted: Jul 29, 2013 By: Tim R-T-C Member since: Mar 19, 2008
    #14
  15. CAEDAN

    CAEDAN UKBF Contributor

    124 26
    It would be difficult to force her to stay. I suppose you could work with her to come to an agreement whereby she forgoes her holiday pay and maybe makes up another week with a deduction from her wages. She would have to agree to that though, and get it in writing, but she may do so if she wants the new job badly enough.

    I would just talk to her and try and negotiate some sort of agreement, whatever it involves.

    It would at least give you the opportunity to get a temp in, and then you could have a 'try before you buy' of a potential new employee.
     
    Posted: Jul 29, 2013 By: CAEDAN Member since: Jul 4, 2012
    #15
  16. internetspaceships

    internetspaceships UKBF Legend

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    I'm surprised that nobody has brought anything up to help you here.

    If the employee is breaching their contractual terms to leave early then does your employment contract make provision to charge for this because it's an entirely reasonable provision to cover their job if they leave early.

    If you don't have this in your contract then at least you can contact a GOOD employment law practitioner and get it included.
     
    Posted: Jul 30, 2013 By: internetspaceships Member since: Sep 7, 2009
    #16
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  17. Newchodge

    Newchodge UKBF Legend

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    You don't need anything in the contract. Employers can already charge the ex-employee for additional costs incurred because of the employee's breach of contract. The problem is enforcing it. The amount of money involved is usually small - the difference between the employee's salary and the cost of a temp, for example, - so it may not be worth taking the case to court if the employee refuses to pay up.
     
    Posted: Jul 30, 2013 By: Newchodge Member since: Nov 8, 2012
    #17
  18. Employment Law Clinic

    Employment Law Clinic Verified Business ✔️

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    Or as an alternative to enforcing the cost of damages, having contracts that would deter employees breaking their notice in the first place!



    Karl Limpert
     
    Posted: Jul 31, 2013 By: Employment Law Clinic Member since: Aug 10, 2009
    #18
  19. internetspaceships

    internetspaceships UKBF Legend

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    Yes it's provided for in our contracts, and deductible from final pay.

    Much better than claiming it later.
     
    Posted: Aug 1, 2013 By: internetspaceships Member since: Sep 7, 2009
    #19
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