What Rights do Employers Have During Notice Periods?

HR expert Georgina Read outlines what small business owners are entitled to once an employee's notice period has begun...

What Rights do Employers Have During Notice Periods?

What are employers’ rights during notice periods? It can be a difficult question for smaller employers, with notice periods often feeling like employment ‘limbo’ for employers and employees alike.

Here we identify some of the key rights you are entitled to as the employer once a notice period has been issued, either by you or the member of staff…

When giving notice of dismissal or redundancy to staff

First off, can an employer fire someone when they’ve already given notice? Or if the employer has already served them notice?

It’s a question that many small business owners ask, as they are without the flexibility to manage or afford long notice periods. For example, if an employee has worked for five years they are entitled to statutory notice of five weeks, and it can be anything up to 12 weeks, a considerable amount of time for a small employer.

The question of notice periods and dismissal has also been brought into the news thanks to Leeds United FC and a senior manager at the club; Mr. Williams.

Mr. Williams had been given 12 months’ notice of redundancy from the club due to restructuring, having been on a salary of £200,000 per annum. However the club also looked for historical reasons to dismiss without notice, thereby escaping the 12 month wait and expense, by having investigators trawl through staff emails.

It was revealed that Mr. Williams had sent pornographic emails to a junior colleague, which did in fact amount to gross misconduct: something they could use to dismiss him without notice. Although Leeds Utd. had started the investigation in order to find a reason to dismiss, the court found the club was entitled to remove Mr. Williams in this case as there had been a possibility that the Club could have faced a claim of sexual harassment.

Whilst I would certainly not suggest that these actions are something any small employer should emulate, as looking for evidence after the fact is a very high risk strategy, it serves to prove that if there is gross misconduct discovered an employer does in fact have the right to renege on their notice commitment.

If an employer was to consider this course of action, I would suggest that they follow procedure very closely. Ensure that all evidence is collected thoroughly so that there is little chance that an unfair or wrongful dismissal case can be brought.

The principle – gross misconduct justifying immediate dismissal even during a notice period – can be applied across the many different forms of notice period. For example, redundancy as above, garden leave, or even when an employee chooses to leave.

When staff give notice to their employer

However, it’s not always the employer who can bring a notice period to a swifter conclusion than normal. What rights do employers have when employees decide to cut their notice period short?

For smaller employers the question is quite easily answered. They do have the right to challenge the employee for breach of contract and seek damages, if notice has been given in writing, but an employee has refused to work it.

However, it is very rare that the losses incurred as a result of losing an employee a few weeks early will really exceed what they would have been paid anyway in salary or benefits. Furthermore, the cost of seeking damages may offset what benefit comes out of it. It’s uncommon for an employer to choose this course of action.

One course of action that is practical and sensible for employers though is to make reference to the failure to serve notice in any employer’s reference you give for the employee. Whilst this is unlikely to make a difference to a new employer that is pressuring them to start earlier, if they have simply not turned up then this could impact heavily on their future employment opportunities.

So, whilst employers may feel that they have little control over what happens during a notice period, this isn’t in fact the case. Should anything serious happen whilst someone is serving their notice period, you can still deal with it just as you would any other employee who has committed gross misconduct.

For more advice on handling staff legal issues, check out our small business guide to dismissing employees here.

Georgina Read is co-founder and director of citrusHR, the refreshingly simple HR support service for small business.

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