Employee Not Working Notice Period? Employer Options

We have received several calls from employers wanting to discuss an employee who has resigned not serving the notice period in their written terms and conditions.

In a recent case a manager resigned and said that she would work only 6 weeks’ notice NOT the 12 weeks the contract stipulated.

She said that the new employer wanted her on a date 6 weeks hence and was not prepared to wait.

The employee said that she wanted the opportunity the new role offered her so had tried to offer a compromise of working 6 weeks instead of 12.

As you can imagine her current employer was very unhappy.

Could she be required to work the 12 weeks?

While there was a clear term in her contract regarding the notice period, in practice it is exceedingly difficult to enforce.

As we often say in Redwing “You can’t drag someone kicking and screaming into work”

Yes, the employee is in breach of their contract, yes it sounds like this is at the request of their new employer, but very few employers are going to be in a position to take legal action in the small claims court about an employee’s breach of contract to either the individual or their new employer.

What would we recommend?

Firstly, do I think the employee could be persuaded to get closer to 12 weeks? Is there a training clawback that you will agree to waive or some other ‘bargaining chip’ that gives you options? Does the employee feel that they are being put in an awkward situation by the new employer and do they realise that’s a red flag to start a new relationship? The new employer is insisting that the new employee breaches a contract!

Secondly, I’d ask myself is 6 weeks worked better than no weeks worked. If the answer is yes and the risk of threatening the employee with them being in breach of contract is that they give no notice and either leave immediately or go off sick, then I may decide to accept the compromise offered. You can still be sad about it, but it’s measured sadness.

If you feel that this has to be 12 weeks, then I’d be looking at my contracts of employment.

Many contracts of employment have clauses in there that allow an employer to deduct the additional cost of cover from final wages where an employee fails to give their contractual notice.

If you find yourself in a situation where your employee is refusing to give you their contractual notice, do reach out so we can discuss your options.

You can find more of our blogs that cover a wide array of HR and employment law issues over on our Knowledge Centre.