I am often surprised when clients tell me how much notice they were given on their dismissal, or how much notice their employer is telling them they are entitled to receive in relation to an upcoming dismissal (for example redundancy). I would guess that in nearly a third of the cases I deal with, my clients have been mistaken about their notice entitlements. Read on for more information.
What Do We Mean By Notice?
This blog only explores the notice an employer is required to give an employee when terminating their contract (dismissing them). In simple terms, the notice period is the time between an employee being told their employment will end, and then it actually coming to an end. Common examples might be that an employee would be given one week of notice, one month of notice, three months of notice, etc….
How to Calculate the Correct Amount of Notice?
There are 3 ways to potentially calculate notice entitlements and each of these is set out below. It is important to note that in some cases, a full review of each potential calculation method might be needed!
Contract of Employment
Section 1 of the Employment Rights Act 1996 stipulates that one of the key particulars that should be provided to employees in written form is the length of notice they are entitled to receive from their employer to terminate the contract of employment. As such, the first place to check for the notice period, is the contract of employment. The notice provisions should be clearly set out. In most cases, there will be a difference between the notice to be given during any probationary period, and the notice to be given once that initial period has passed.
It is always important to ensure that any written contractual notice period is at least as good as statutory notice (see below). If it is not, then the statutory regime should be used. Just one worked example could be that an employee with 10 years of service has a contractual notice period of one month. One month of notice for an employee with this length of service is far less than the statutory entitlement below. As such, the statutory regime should be used, meaning the employee would be entitled to 10 weeks of notice.
Section 86 of the Employment Rights Act 1996 imposes a minimum statutory notice period that the employer must give to an employee to terminate their employment. Section 86(1) states that the notice required for a person who has been continuously employed for one month or more is: –
- Not less than one weeks’ notice if their employment is less than two years.
- Not less than one weeks’ notice for each year of continuous employment if the period of employment is two years or more, but less than 12 years; and
- Not less than 12 weeks’ notice if the period of continuous employment is 12 years or more.
A couple of worked examples under the above provisions would be: –
- An employee with 5 months of service would be entitled to 1 week of statutory notice.
- An employee with 8 years of service would be entitled to 8 weeks of statutory notice.
- An employee with 15 years of service would be entitled 12 weeks of statutory notice.
Again, to repeat the point above, if written contractual notice is not as long as the statutory entitlements, then the minimum statutory notice period should apply.
Implied “Reasonable Notice”
If an employee has no written contract of employment, or any other written terms that set out how much notice the employer is required to give to terminate the contract, it is possible to imply what is termed “reasonable notice” into the contract. What constitutes reasonable notice will depend on the circumstances each case and the following factor will usually be considered.
- Length of Service – the longer the service, the greater the notice period is likely to be (and see also statutory notice below).
- Salary & Seniority – whilst not always the case, an employee who commands a higher salary and rank may well have an implied expectation of a longer notice period given how long it might take to find alternative like work.
- Job Role & Duties – again, whilst not always the case, the more niche and perhaps senior the role and duties, the more likely a longer notice period could be implied.
The impact of being able to argue “reasonable notice” is that an employee with perhaps just one week of statutory notice (see below) and no written express term for notice, could try to argue for a more reasonable period of notice, if the circumstances warrant.
As alluded to above, one very common problem is employees believing they are only entitled to short notice because that is what their contract incorrectly states. A further common problem is employees in particularly senior or niche roles with no written contract not realising there is an opportunity to argue for what is termed reasonable notice. When looking at notice entitlement, it is always important to carefully consider each of the three potential sources set out above.
Can Lincs Law Employment Solicitors Help You?
If you are going through a dismissal process at work, or are facing any other employment law concerns, please contact us on 01522 440512 for a free initial telephone enquiry with one of our specialist employment solicitors. Alternatively, for more information about the services we provide, please visit our website at https://lincslaw.co.uk/.
Specialist Employment Solicitor
Lincs Law Employment Solicitors