Issue the correct periods of notice

Varying the notice period

The statutory or contractual notice period can be varied in a number of circumstances.

Summary dismissal

This occurs where an employee is dismissed without notice - summary dismissal - for gross misconduct. However, unless there is a proper investigation and a fair hearing an industrial tribunal might find that the dismissal was unfair.

Breach of contract

The employee can also terminate the contract of employment without notice if the employer has fundamentally breached the contract by their conduct.

Right to waiver

Employers and employees can both waive their right to notice, ie the employer and employee can agree to a shorter notice period, or to no notice period other than that provided for by the contract or minimum statutory notice periods. This must be by mutual agreement and neither an employer nor employee can opt out of the minimum legal periods when forming a contract of employment.  

Pay instead of notice

This will be a breach of contract unless the contract expressly provides for it or the employee is willing to accept pay in lieu.

Minimum notice periods

The employment contract can be varied by agreement between the parties, but the statutory minimum notice periods will still apply.

Counter-notice

An employee who has been given notice of dismissal can give counter-notice to leave on an earlier date than the one on which the employer's notice period ends. The minimum statutory notice that an employee must give is one week, but usually their contractual notice period will be longer than this. For the purposes of unfair dismissal legislation, the employee will still be treated as having been dismissed.

Redundancy notice

If an employee who has been given a redundancy notice wants to leave before their notice expires, eg to start a new job, they can ask the employer to agree an earlier termination date. If the employer agrees, they will still get their redundancy payment.

However, if the employer objects they may withdraw the original redundancy notice and refuse to give the employee a redundancy payment. The employee could apply to a tribunal which will decide whether the employee should get all, part of, or none of the redundancy payment.

Subjects covered in this guide

• Introduction
• Contractual and statutory notice periods
• Notice periods on maternity, paternity, adoption or parental leave
• Varying the notice period
• Minimum payment rights
• Payment in lieu and compromise agreements
• Withdrawing notice

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