Entitlements to notice when you are leaving your job can be confusing. Different entitlements apply whether you resign; are made redundant; are dismissed for gross misconduct etc. Add in differences between statutory and contractual entitlements, terms about garden leave and PILON, and it is easy to become confused. This blog hopes to make information about notice entitlements a little clearer. Read on for more information.
What is My Statutory Notice Period?
All employees have a statutory notice period which is the amount of notice an employer should give you if they intend to terminate your contract of employment. Your notice periods are a fundamental right that you, as an employee, have. The amount of statutory notice you are entitled to will depend on how long you have been employed.
If you have been employed for more than one month, but less than two years, your statutory notice period shall be one week.
If you have been employed for more than two years, then your statutory notice period is one week for every year you have worked for your employer. Please note that there is a cap on the notice period of 12 weeks.
For example:
- If you have worked for your employer for 5 years, your statutory notice period will be 5 weeks.
- If you have worked for your employer for 12 years, your statutory notice period will be 12 weeks.
- But, if you have worked for your employer for 17 years, your statutory notice period will still be 12 weeks due to the statutory cap.
Your statutory notice period is the minimum notice period your employer should give you to terminate your employment. The only exception is where you are dismissed for gross misconduct (see below).
Please note, your statutory notice period is the minimum amount of notice your employer is required to give you if they terminate your employment. The same does not apply in you end your employment by resigning, although there is likely to be a minimum period of notice you must give in your contract (see below).
Contractual Notice Period
Your statutory notice period cannot be reduced by agreement between the employer and employee. It is an absolute right that you receive this notice if your employer terminates your employment (bar dismissal for gross misconduct, see below). However, your contract of employment may entitle you to more than the statutory right. For example, it may stipulate that after being employed for two years, your contractual notice period will be 12 weeks. To complete this example, this means you have a contractual right to 12 weeks’ notice if your employer terminates your employment.
As above, it is not unusual for different notice provisions or periods to apply if you end your employment by resigning. If you have a contract of employment it should state how much notice you must give your employer. If you have no contract of employment, your notice must be reasonable in all the circumstances.
Why Is It Important To Understand The Difference Between Statutory or Contractual Notice?
It is important that you understand the difference between your statutory and contractual notice in order that you receive the correct notice if your employer terminates your employment. It can make a difference as to the amount you are paid during your notice period and even decide your continuous service for some Employment Tribunal claims.
Is My Employer Required to Pay My Notice Period?
If you are dismissed with notice, for example for redundancy, sickness absence, performance matters etc, then, yes, your employer is required to pay you for your notice period.
Your employer can pay your notice through passage of time. This means you remain employed for the duration of your notice period and either carry on working as usual or be placed on garden leave.
For example, if you have a 4-week notice period and your employer informs you that your notice period will commence on the 1 April 2021, your termination date (last day of employment) will be 29 April 2021.
In the alternative, your employer may be able to pay your notice as a payment in lieu of notice. This is commonly referred to as a PILON. Your contract of employment will need to state that your employer can pay your notice as a payment in lieu. Under this option, your employment will come to an end immediately and you are not required to work your notice period. Instead, you are paid your notice period as a lump sum payment.
For example, if you have a 4-week notice period, and on 1 April 2021 your employer informs you that your termination date shall be that same day, your notice shall be paid as payment in lieu. Your employment would end on 1 April 2021 and you would then receive a lump sum payment equivalent to 4 weeks’ pay (subject to usual PAYE deductions).
Can My Employer Refuse to Pay My Notice?
There are certain exceptions when an employer can legitimately refuse to pay an employee their statutory or contractual notice pay. For example, when an employee is dismissed on grounds of gross misconduct and summarily dismissed.
In this situation, your employer will claim that your actions or misconduct were so severe that they are entitled to dismiss you and refuse to pay your notice.
If your employer states that you are being dismissed without notice, please do not immediately assume that your employer is correct in their position.
In order for a gross misconduct dismissal, or dismissal without notice, to be fair and legal, the alleged conduct must be really serious. Common examples of gross misconduct offences are:
- Theft at work
- Physical violence at work
- Persistent and serious dishonesty
- Being under the influence of drugs or alcohol whilst at work.
What Can I Do If My Employer Refuses to Pay My Notice?
If your employer refuses to pay you for your notice period, you may be entitled to bring a claim for Wrongful Dismissal.
Wrongful Dismissal is where your employer has breached their notice obligations. If they have failed to correctly pay your notice period, then potentially you would be able to bring a Wrongful Dismissal claim at the Employment Tribunal.
In terms of compensation, you are only able to claim the amount of notice which you would have been entitled to, had your employer correctly paid your statutory notice or notice under your contract. However, we often find that were there is a wrongful dismissal claim, a claim of unfair dismissal is also available which has different calculations for compensation (please see our website at https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/unfair-dismissal/
There are strict time limits in which you can bring a claim for wrongful dismissal. You must start the litigation process by registering your claim with ACAS Early Conciliation within 3 months less one day from your termination date. For more information on ACAS Early Conciliation, please see our blog: https://lincslaw.co.uk/blog/what-is-acas-early-conciliation/
Lincs Law Employment Solicitors Can Help You
If you would like to further advice on notice periods or wrongful dismissal, please call 01522 440512 for a no obligation, free telephone consultation. For more information on the services we offer, please visit our website: https://lincslaw.co.uk/services/employees/
Jasmine Stewart
Specialist Employment Solicitor
Lincs Law Employment Solicitors
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