2 min read | 3 February, 2021 By Joel Upton
One of the most frustrating times you may face as a small business owner or manager is when your employee decides they want to leave and, for whatever reason, they're not going to be working their notice period.
As you comprehend the news that they’ll be leaving, and soon, I’m sure you’ve begun to consider the effects this will have on your company. From the work time being lost to the cost of recruitment or having to hire in a temp.
Instead of pulling out the lock and key to chain them to their desk for the next four weeks, let’s explore what can be done.
If your employee has been with you for longer than a month then they are obliged to give you a minimum of one week's notice. However many contracts will require a longer period.
The only exceptions to a notice period are if you have seriously breached their contract or if you have both agreed to waive the notice period.
If an employee decides not to show up after handing in their notice then you are not required to pay them. However, as mentioned before you could still be left in a very tricky situation as there will likely be costs linked to loss of business, so what should you do?
This is where you need to consider the length of notice you require your employees to give. You're free to set any length of the notice period, and, as long as the employee signs that contract, then they are required to adhere to it.
This begs the question as an employer, why wouldn't you just set long notice periods for all your employees? This way you'd have a buffer to find replacements when people decide to leave. However, it's crucial to consider the employee in this circumstance and it is important to set the notice period in connection to the seniority of the role they're doing. Otherwise, you face a much higher possibility of the employee not working their notice period (or even signing the contract in the first place).
Another method of prevention is writing into all contracts a clause which states that the company may subtract from the employee's final wages the amount they would have earned. For example, if an employee is required to give four weeks notice but only works two of them, then you would deduct two weeks' pay from their final wages.
Hindsight is a beautiful thing, however, is there anything that can be done if they've already decided not to work their notice period?
There is the expensive and time-consuming option of approaching the courts. The courts will be very unlikely to force the employee to work their notice period but they will more likely award damages for any losses the company may have suffered as a consequence of the breach of contract.
These damages can often be hard to prove since details of any loss to profit will need to be worked out and clearly documented, along with any additional costs accrued from arranging temporary cover.
The courts should be seen as a very last option and only if it's considered to be financially beneficial to the company. The decision isn't to be taken lightly (or in the heat of the moment). The most important step you can take is to ensure the contracts employees sign provide clear details on notice periods and clauses when not kept.
Unfortunately, when someone has made up their mind to leave it's unwise to force them into staying. Whilst you would be within your rights to try to make them work the full notice period their productivity is likely to be very low.
A better option would be to try to find a compromise. Could they work longer hours to make up for a shorter notice period? Could they stay just to complete an important piece of work and then be free to leave?
Calm persuasion and compromise will likely be the most fitting option to get the optimum possible outcome. As frustrating as it is knowing the law is on your side, letting the employee go, and not working their notice period, might just be the best business decision.
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