You must usually give notice to lawfully terminate your contract of employment. There are exceptions, for example where the contract is for a fixed term and simply expires on a certain date or event, or where you intend to claim ‘constructive dismissal’. How you resign and what you say is also important.
How much notice do I give?
Your notice requirement is normally found in your contract of employment. If there is no express term, or you don’t have a written contract, the statutory minimum period of notice will apply. The statutory minimum period of notice where you have been employed one month or more is 1 week. If you have been employed less than a month, then you do not need to provide any notice. A much longer notice period may, however, may be implied if it is reasonable in all the circumstances (i.e. what is normal for a person of your seniority and in your particular industry). A failure to give the required notice is likely to constitute a breach of contract. If you are resigning because of a repudiatory breach of contract by your employer (grounds for a constructive dismissal claim), you would not usually be expected to work your notice as this would form part of your claim.
Despite the statutory or contractual position, it is open to you and your employer to agree a different notice period; your employer may agree to accept a shorter period of notice, or, indeed, no notice. There are a number of reasons why this might be attractive. Your employer may offer you a payment in lieu of notice.
What if I don’t give proper notice?
If you don’t give proper notice to your employer, there are several options the employer can consider:
- If you have an express garden leave clause in your contract, your employer may try to enforce this by seeking an injunction preventing you working elsewhere for the period provided by the clause.
- Even if there is no express garden leave clause, your employer may still seek an injunction to keep you out of the market (paid, but idle) for the duration of the notice period.
- Your employer may bring a claim against you for breach of contract. This is rare in practice since it will often be difficult for the employer to prove that it has suffered loss as a result of the employee’s early departure.
How do I resign and what should I say?
The manner of resignation may be provided for in your contract. Usually notice must be given in writing. If there is no written provision dealing with notice, notice it may be given orally or in writing.
Whether giving notice in writing or orally you should ensure that your employer is clear that you are resigning, how much notice you are giving and when your last day will be.
A resignation which is expressed to be conditional on agreement of a compensation package will not be effective if no such agreement is reached.
If you are resigning following unfair treatment by your employer (such as bullying) and are considering bringing a claim for constructive dismissal, then what you say in your letter of resignation is really important. You must be careful not to say anything which might adversely affect your claim. It is recommended that you take specific legal advice before you resign.
Can I withdraw my notice?
Once a valid notice has been given, it cannot be withdrawn unilaterally. Your employer will need to agree. However If you resign ‘in the heat of the moment’, for example in anger following an altercation, you may be able to withdraw the resignation if you do so quickly. Case law demonstrates that employers are expected to give an employee a reasonable period of time to calm down and reconsider whether they really do want to resign. If they fail to allow this, the employee may have a claim for unfair dismissal.
What are my rights during the notice period?
You are entitled to receive your normal pay during your notice period, as set out in your contract of employment. If you are off sick during the notice period you will be entitled to receive your normal rate of pay, contractual sick pay or SSP unless you have exhausted this already prior to your notice period commencing.
If you have accrued but unused holiday you can take holiday during the notice period, although your employer might be entitled to refuse a holiday request if you are needed to complete a piece of work before you leave. If your contract provides, your employer may insist that you take any unused holiday during the notice period.
Can I resign before or during a disciplinary process?
You can and on the face of it, there are benefits for doing so. You might avoid a gross misconduct dismissal on your record. However this might be viewed as evidence of your guilt and weaken any subsequent employment tribunal claim you wish to make. Bear in mind though that your employer could continue the disciplinary process during your notice period, and ultimately still dismiss you for gross misconduct. This could supersede your resignation, with the effect that the balance of your notice period is cut short.
Resignation in the face of disciplinary proceedings is tactical and you should take advice before taking action. It may be possible to negotiate an exit which allows you to leave with your reputation intact and an agreed reference.
How can Lincs Law help?
If you would like specific advice please contact one of our specialist employment law solicitors at LincsLaw on 01522 440512 or visit our website at www.lincslaw.co.uk for more details on how we can help you.
Kathryn Bolton
Specialist Employment Law Solicitor
LincsLaw Employment Solicitors