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The Importance of Understanding Statutory Notice Periods in Employment Law

In most situations where an employment contract is terminated, a notice period must be given.  This is not just a matter for the employer; in most circumstances, employees also have a contractual and statutory obligation to give notice if they choose to leave.  And until such time as the notice period ends, the contract of employment continues to operate as normal.  This means that the employee should be permitted to continue to work, receive pay, and for the employer to act in accordance with the employment contract during this time.  Failure to give adequate notice is unlawful unless an exception applies (more on these later).  In this article, we explain what employers and employees need to know about statutory notice periods when terminating an employment contract.

27 July 2021
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What are the types of notice in employment law?

Most employment contracts contain a section detailing the contractual notice period.  Any failure to adhere to the terms may be considered a breach of contract.
If there is no employment contract in place, “reasonable” notice must be given.  The court will typically take the view that this should be at least the statutory period (as explained below), but depending on the circumstances, a longer period may be warranted.  Factors such as the industry norm, the employers tenure, and their seniority should come into play when making this determination.

Under section 86 of the Employment Rights Act 1996 (ERA 1996), employers and employees have an obligation to give statutory notice when terminating an employment contract.  If the contractual notice period is longer than the statutory minimum, the former will typically take precedence.  

It is also worth mentioning that while an employee cannot contract out of the right to receive statutory minimum notice, employers and employees can choose to waive their right to receive notice.  In practice, any employer or employee who has the right to be given notice of a set period may decide to waive this right and accept a shorter period of notice or no notice at all.
In situations of a repudiatory breach (e.g. wrongful or constructive dismissal), the employer or employee may have no legal obligation to give notice as they are entitled to accept that the repudiatory conduct of the other party means the contract is terminated.  

How much statutory notice must be given?

As per the ERA (1996), after working for an employer for more than one month, an employee is entitled to a minimum period of notice from their employer.  The statutory notice periods are as follows:
The statutory notice periods for employers are as follows:

  • Where an employee has been employed for more than one month but less than two years: at least one week’s notice of termination.
  • Where the employee has been employed for more than two years but less than 12 years: one week’s statutory notice for each year of continuous employment. 

Under the ERA (1996), employees also have a statutory obligation to give notice to their employer if they choose to leave their employment.  This notice period is only one week, assuming that they have been employed for one month or more.

What if the employment contract provides for termination without notice?

If there has been a repudiatory breach of the employment contract by an employee, it cannot be assumed that just because a contract has a clause stating that no notice or notice pay will be due in such circumstances, that this is necessarily the case.  s86(6) of the ERA (1996) states in relation to the section on the rights of employers and employees to a minimum notice, “This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party”.  In other words, no matter what is in the contract, notice must be given unless the conduct of one of the parties entitles the other to terminate the contract immediately.  Hence if the reasons for immediate (summary) dismissal are not just matters of conduct, the statutory minimum notice period must be given.  If the reason for dismissal is purely conduct related, then no statutory minimum period of notice needs is required.

Final words

Where an employer dismisses an employee without due notice, a claim for wrongful dismissal for breach of contract or even an unlawful deductions claim may be brought.  Employees who fail to give sufficient notice may be put on enforced garden leave, the employer may seek an injunction to keep them out of the market, or they may be on the receiving end of a breach of contract claim.  If you are an employer or employee and you are unsure of your rights or that of the other party when it comes to notice periods, it is advisable to check this with a specialist in employment law

Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey.  We have a highly experienced employment law team who can assist you with all matters relating to termination of employment contracts and notice periods.  To make an appointment, please call us on 01932 840 111.