Employment Law – Contractual Notice Period

[naomi24]

What happens if an employee resigns and, without the agreement of the employer, gives notice of intention to leave before his contractual notice period has expired?

[Zacs-Master]

Depends what it says in their contract.

[naomi24]

Say it's a straightforward 6 months either way?

[Zacs-Master]

Depends what it says in their contract.

[naomi24]

:o/

[237SJ]

I don`t know but you could try phoneing the ACAS helpline on 0300 123 1100

[237SJ]

*phoning*

[naomi24]

237SJ, thank you.

[bhg481]

I THINK the employer can sue for breach of contract but, in practice, it never happens.

[naomi24]

bhg481, thank you. I know the employer is at liberty to sue, but how likely it is that an influential company would usually do that to a senior employee is really what I'm trying to determine.

[cassa333]

If it is an influential company of any note they probably don't want any negative publicity an employment tribunal would bring just because someone wanted to leave!!

Is The hand over that cumbersome that they need six months or that long to find a replacement?

[bhg481]

Perhaps it depends on what you mean by "senior employee". Is it someone who has worked for the company for many years in an "ordinary" post or, say, a member of the board or other post which has great influence on the operation of the company?
If the former I wouldn't expect them to bother. If the latter and the person is moving to another company then they might take further action. Remember it's damages for Breach of Contract, so the company have to prove that damage has been done to the company and put a value on it; usually more bother than it's worth.

[naomi24]

cassa333, //Is The hand over that cumbersome that they need six months or that long to find a replacement? //

Possibly not 6 months - but they wouldn't be looking to the Job Centre for a replacement so not a simple task. I'm not suggesting that the employee would leave the moment notice was given, but in order to join a new company, thinking of giving, say, 3 months notice instead of 6.

bhg481 //a post which has great influence on the operation of the company?//

That’s the one.

[woofgang]

naomi, I doubt they would sue because all they could sue for would be their loss and unless the person is a real hot shot somebody or other, realistically the loss would be small. In my experience of the oil industry, its more common to be given "gardening leave" as soon as the intention to leave is announced in order to limit loss of commercially sensitive information.
If leave or other pro rata'd benefit has been taken in excess of what is allowed by the amount of the year worked (does that make sense?) then any unearned portion may be reclaimed of course.

[naomi24]

Woofgang, //its more common to be given "gardening leave" as soon as the intention to leave is announced in order to limit loss of commercially sensitive information. //

That's my thinking - but in this instance it's a specialist job and it's imperative that the role is filled, so I don’t think gardening leave would be an option. Giving the company, say, 3 months notice and working that 3 months, would carry it over the transition period.

[woofgang]

hmm so there is actually a risk of serious financial loss to the company? ie the company could not function without that person? How easy would it be to find a replacement?

[bhg481]

"It's a specialist job and it's important that the role is filled."
If it's that important there should be a deputy. What would the company do if the employee was taken ill? This is the argument that would be used if things went to court and, I suspect, why they rarely do.

[naomi24]

Woofgang, More a risk of serious malfunction which could lead to serious financial implications. A replacement could be found, but not easily.

bhg481, there are staff working in the area, but none with the ability to fill the role. The long-term illness argument is interesting.

[bhg481]

Death is the case extreme case of chronic illness and the company should be prepared for this. "What happens if he's knocked down by a number 9 bus?" If the company has taken no steps to guard against this then they can hardly say he's so indispensible that they will suffer severe financial loss if he leaves before his contract expires.

Incidentally, when I was retiring people were, kindly but erroneously, saying that they didn't know how the company would manage without me, so I quoted this to them:

http://www.mick-armitage.staff.shef.ac.uk/poems/poem-im.html

[naomi24]

Haha! I like it! :o)

[EDDIE51]

Yes, ^^ what if the person dropped dead of a heart attack or was killed in an accident . Both these things happened to companys where I was working and we carried on as before.