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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48172
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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If an employee wishes to leave one's current employment but

Resolved Question:

If an employee wishes to leave one's current employment but have a shorter notice period than the one stipulated in one's contract, if the employer agrees to a shorter notice period, will one get paid in lieu of notice ? The contract says: "You are required to give six months' prior written notice of the termination of your employment before leaving the firm. You are entitled to receive the same periof from the firm. The firm may, at its discretion, elect to make a payment in lieu of your notional salary for some or all of your notice period." I understand that generally the employer would be required to do so if they were the ones to request you leave but its not 100% clear to me if this would be the case if the employee initiates the request although of course the employer wouldn't agree to a shorter period if they didn't feel it was in their interest to do so. Depending on your answer, is there certain wording an employee should or not use in any resignation letter?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

If the employee requests a shorter notice period and the employer agrees to let the employee leave with that period, the employee would only be entitled to the shorter pre-agreed notice period, not to their full notice period. It is possible for the employer to still agree to let the employee receive payment for the full notice period but that is something that is left entirely at their discretion and if they do not agree to do that there is no way of forcing them to do so. There is no specific wording in the resignation letter to use for that - it is really something that needs to be pre-agreed before the resignation is handed in, then if the employer agrees to pay the full amount that needs to be confirmed in the resignation letter, but as mentioned before you do that you need to approach the employer and ask them if they are willing to pay for the full notice period or if they will just pay for the shorter notice period that was agreed between them

Customer:

So I'm a little unclear therefore as to the force of the contract wording that refers to the firm at its discretion... surely if the employer terminates early which would be at its discretion then it would have to make payment in lieu of notice so why is the contract wording not also saying that this would apply when the employee terminates and requests a shorter notice period -is the discretion not referring to a decision to allow for early termination rather than a discretion to make a payment in lieu of notice ? Also if the employer does not make payment in lieu then if worked for the employee they could extend their notice period which might not be in the employers interest anyway.

Ben Jones :

When the employer issues notice of termination, they are bound to give the employee their full notice period and if they want the employee to leave earlier than their end date had they been allowed to work the full notice period then they must pay them in lieu of notice for the remainder of the notice period. If the employee resigns they would be expected to also give the full notice period. However, if the employee wants to leave earlier and not work their full notice period they would be acting in breach of contract and they will only be allowed to leave early with the employer's consent. If the employer consents to the employee leaving earlier than planned then they will be varying the contract of employment and that will in turn shorten the notice period to that requested by the employee so they will only have to pay them for the shorter notice period requested by the employee. There is nothing stopping them from agreeing to pay them for the full notice period but that is left entirely at their discretion and they certainly cannot be forced to do so

Customer:

Understood thanks - I guess therefore to my last sentence, if the employee stipulated that they wanted the full 6 months period of notice, the employer could at their discretion say they wished the notice period to be shorter and in such circumstances would have to make payment in lieu in order for the employee to accept the shorter notice period ?

Ben Jones :

yes correct, but that request must come from the employer, not the employee

Customer:

Thank you for the prompt and clear answers. I have no further questions at this stage.

Ben Jones :

you are welcome, all the best

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