Refusing to work their notice period

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An employee with a one-month notice period in his employment contract has just tendered his resignation. He’s also stated that he won’t be coming into work again. Where do you stand legally?

 

The strict legal position
Technically speaking, where an employee refuses to work some or all of their notice period, it amounts to a breach of contract on his part. Although our subscriber can point this out, the employee can’t be forced to turn up for work. In light of the employee’s refusal, our subscriber could try to claim damages for the breach of contract through the civil courts but in the vast majority of cases such legal action is expensive, time-consuming and generally not a worthwhile exercise.

 

Sorry, no deal
If the employee isn’t moved by either of these requests our subscriber can’t demand that he comes into work. That said, just because the employee has adopted this stance it doesn’t mean that his employment contract has been terminated.
The contract remains live until either: (1) the formal contractual end date, i.e. when the notice period would ordinarily cease; or (2) the employer takes steps to bring it to an end early.
Tip 1. In some cases, particularly where an employee holds certain skills or they are intending to work for a competitor, it may be in your interests to keep a contract ongoing for as long as possible. That’s because the employee will remain bound by its terms throughout their notice period. On the flipside, they’ll still be entitled to pay and, depending on your contract wording, may i;etain all other contractual rights. So you will have to weigh up any decision on a case-by-case basis.
Tip 2. If you decide to allow the employee to leave without working their entire notice period, don’t let them have the last word. Confirm in writing that you have released them from their notice period early (see The next step). This brings their contractual rights to an end and means you won’t have to pay them for the unexpired part of their notice period. It also prevents the employee from alleging that you converted their resignation into an unfair dismissal.

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