EMPLOYMENT RIGHTS ACT 1996 s.86(2)
--------------------------------------------------------------------------------
NOTES.
ERA 1996 s.86 is entitled "Rights of employer and employee to minimum notice".
--------------------------------------------------------------------------------
BASIC POSITION
Statutory minimum notice to be given by an employee is one week if he has been in continuous employment for at least one month (ERA 1996 s.86). If employed for less than one month, the common law requirement of reasonable notice will apply.
An employee's contract can validly provide that the employee must give longer notice than the statutory minimum (and in this context it is worth remembering that employment contracts are valid even if not in writing - for notes on minimum legal requirements see Statement of particulars of employment/employer's obligation to provide ). It therefore follows that a verbal or other unwritten agreement between employer and employee for a minimum notice period can be legally binding.
As a matter of common sense, and this is reflected in case law, words spoken in the heat of the moment will not be automatically binding. So if an employee resigns in a temper and the employer refuses to accept retraction of the resignation a short while later it is likely, depending on all the circumstances, that the employee will be able to win an unfair dismissal claim (see Martin v Yeoman Aggregates Ltd 1983 ICR 314, EAT).
Unless the employer has acted so improperly that the employee can treat his contract as ended (as to which see notes on constructive dismissal ) or something has happened which makes it impossible to go on working (see notes on frustration of contract ) it is an unlawful breach of contract for an employee to resign without giving the notice, if any, required by his contract. However because employment contracts are "personal" the courts will not order specific performance as a remedy for the breach (save in very exceptional cases - see eg Powell v London Borough of Brent 1988 ICR 176, CA) so in practice if an employee quits without giving proper notice the only course normally open to the employer is to grin and bear it - or in exceptional cases to sue for damages (see below).
DTI Booklet PL707 (Rev 13) entitled "Rights to notice and reasons for dismissal" is a useful summary of relevant law (available free of charge from HMSO or the DTI Employment Service - see addresses, tel & fax nos - and on the DTI Website).
MORE DETAIL
In law an ex-employee who has resigned without giving the notice required by his contract and without justification can be sued by the former employer for breach of contract (ie for damages to make good any reasonably foreseeable resulting loss such as the additional costs of hiring a temp to cover until someone else can be found to do the job). In practice, in the majority of such cases it is unlikely to be practical or cost-effective for an employer to take a former employee to court if that is the only cause of action.
An employer may of course be tempted to take the law into his own hands and make what he considers to be a proper deduction from the employee's final pay if that has not yet been paid. Unless the employee had given prior consent, for example in the employment contract, such unilateral action by the employer would be unlawful and could result in an order by a tribunal for payment of what is effectively a penalty (see notes at Deductions from wages etc/deductions from wages, salary or pay generally and especially Deductions from wages etc/penalty for improper deductions from wages ).
However if the employee left to go to a better job and the new employer knowingly encouraged the employee to switch jobs without giving the notice required by his current contract the previous employer would also have a claim against the new employer for inducing the breach of contract (see for example Bowen v Hall [1881] 6 QBD 333). If the facts warrant it an employer might therefore sometimes think it worth taking legal action against a poaching employer, especially if he is a business competitor.
The fact remains, nevertheless, that in the real world, legal action by an employer against another employer who has head hunted or poached employees is uncommon except where questions of breach of restrictive covenants are involved.
There is an important side effect to the fact that an employer is legally entitled to sue an ex-employee who has resigned without giving proper notice. This is that the legal existence of the right, whether or not it is enforced, can have the effect of nullifying a contract clause giving the employer the right to deduct the equivalent of notice pay from any final amount due if an employee leaves without giving proper notice. As noted above such a clause can operate as a valid exception to the rules forbidding deductions from wages etc but under general principles will only be valid if it is a genuine pre-estimate of damage. Otherwise it will be regarded as an illegal "penalty clause" (see Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co [1915] AC 79 and for a recent example see Smith v Giraud UK Ltd 2000 EAT, unreported).
FINISH>
Author
Topic: Employment law info needed (Read 2006 times)