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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 70889
Experience:  Qualified Employment Solicitor
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We have a member of staff that has handed in their notice.

Customer Question

We have a member of staff that has handed in their notice. Their contract of employment states they have a three month notice period. With the pandemic affecting the business over previous months, we did have to reduce people's salaries and hours to 80%, so 4 day weeks instead of 5. This alteration was agreed and confirmed in writing by this member of staff. She has just received a new job offer from another company and I don't believe that she realised her notice period was three months. So she has accepted to start in four weeks time. This time scale does not work for us and we want her to serve her three month notice. Does she have any rights to refuse to work her notice period?
Submitted: 12 days ago.
Category: Employment Law
Expert:  Ben Jones replied 12 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 12 days ago.

Hi there. Can I just check, how long has she worked for the business?

Customer: replied 12 days ago.
She has worked for us since 25/09/2019, so just over a year.
Expert:  Ben Jones replied 12 days ago.

OK I understand and thank you for providing this information. Please do not worry and leave it with me for now; I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Expert:  Ben Jones replied 12 days ago.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. If there is a written contract in place and it contains a specific notice period clause, which an employee must give if they wanted to resign, they will be contractually bound by it. Therefore, if the employee fails to honour this notice period they will be acting in breach of contract. Whilst no one can physically force them to work through their notice period, it would instead allow the employer to sue them for compensation for losses/damages resulting from their breach.

However, to do so, the employer has to show that actual and unavoidable losses have been incurred and often that is not easy to do. The most common damages they could claim for are due to engaging temporary cover for the employee’s duties. That would attract costs such as the difference in pay, if they were to be paid a higher wage, or recruitment fees for finding a replacement at short notice.

You also have to make a claim in court for these and justify how and why they were incurred, before you are able to pursue the employee for these expenses.

Should you decide to claim, if a party wishes to pursue another for financial compensation arising out of a dispute between them, they can potentially do so by making a court claim. However, as legal action should only be used as a last resort, there are certain steps that should be taken initially to try and resolve this matter informally and without the need to involve the courts. It is therefore recommended that the following steps are taken in order to try and resolve this:

1. Reminder letter – if no informal reminders have been sent yet, one should be sent first to allow the other party to voluntarily settle this matter.

2. Letter before action – if informal reminders have been sent but have been ignored, the other party must be sent a formal ‘letter before action’ asking them to resolve this amicably within a specified period of time – 14 days is reasonable. They should be advised that if they fail to make contact to resolve this matter, formal legal proceedings will be commenced to pursue them for compensation. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this without the need for legal action. There are numerous templates available online for such letters and a simple search will bring up a list of useful results.

3. If the letter before action is also ignored, formal legal proceedings can be initiated. A claim can be commenced online by going to https://www.gov.uk/make-money-claim. There will be a fee payable, which depends on the amount that is claimed. The other side will eventually get a copy of the claim and they will have a limited time to answer it. They could accept it and pay what is owed, they could accept it only in part and defend the rest, or they could outright reject it. They could also completely ignore it, in which case judgment will eventually be entered automatically against them. Also, it is worth noting that the simple act of submitting a claim could show the other side that this is being taken seriously and prompt them to consider negotiating a potential solution to stop the claim progressing further, such as offering full or partial payment of the amount sought in the claim.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Customer: replied 12 days ago.
Thank you for this response. One final point, initially they have said that they will not be working the notice but will be starting work for a new employer in 4 weeks time regardless of what we want. She has then also requested that she has a P45 is processed and given to her at the end of this 4 weeks to give to her new employer. Do we need to give this to her in her time period or do we issue this when are actual notice period is completed?
Expert:  Ben Jones replied 12 days ago.

Hello, thank you for your further queries, I will be happy to answer these. According to regulation 36 of the Income Tax (Pay As You Earn) Regulations 2003, if an employee ceases employment, their employer must provide them with a P45 "on the day on which employment ceases or, if that is not practicable, without unreasonable delay".

So the key is when the employment officially terminates. She can bring it forward to any day that she wants whilst acting in breach of contract. So even though the employment would have terminated earlier than the full notice period, and you have to issue a P45 as a result, it will still place her in breach of contract, but that is a separate matter.

I very much hope that your further queries have been answered to your satisfaction and please do not hesitate to get back to me if you need further clarification.