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What notice period does my employee get?

A dismissed staff member is claiming much longer notice than you think they are obliged to. Barristers Michael Salter and Chris Bryden advise on how to handle the issue.

A dismissed staff member is claiming much longer notice than you think they are obliged to. Barristers Michael Salter and Chris Bryden advise on how to handle the issue.

THE SITUATION

I wish to dismiss an employee who has worked at my practice for only 6 months. The employee says that legally he is entitled to 6 weeks' notice, one week for each month of his service. Is this correct?

THE ADVICE

Unless an employee is being dismissed for gross misconduct, he is generally entitled to a period of notice before his employment comes to an end. This is a period during which his employment continues and he remains entitled to be paid for that period. There are two sources which are relevant when considering the duration of any notice period: the employee's contract of employment, and statute. The period prescribed by statute will apply if there is no contractual term, or the contractual term is less generous than the statutory minimum term.

All employers have an obligation to provide their employees with a written statement of their terms and conditions of employment within two months of the employee commencing employment. One of the terms that is required to be set out in this statement is the notice period the employee is expected to give and can expect to receive, before the termination of the employment relationship.

If the employee's contract provides for a notice period then that is the period that the employee is entitled to. However, if the contract does not so provide then the statutes governing employment law provide a minimum period for notice. However, an employment tribunal may regard the minimum as just that, and determine that the employee may be entitled to a longer period of notice. For instance, if the employee is a senior employee, or has a long period of service, the Tribunal may decide that a longer period of notice than the bare statutory minimum can be implied into the contract of employment. Further, the Tribunal will have regard to general practice, so evidence relating to notice periods of similar employees in other surgeries may be relied upon in determining whether there is a standard notice period in the particular field of employment.

In the absence of any term relating to notice periods in the employee's contract of employment the starting point is the statutory minimum period. Generally, an employee is entitled to one week's notice if they have been continuously employed for one month or more. Their notice entitlement remains at one week until they complete two years' continuous employment, whereupon they are entitled to one week's notice for each year of continuous employment up to a 12 week maximum.

However employers are entitled to far less notice from an employee choosing to leave. So long as the employee has been continuously employed for more than one month then (unless the contract of employment provides otherwise) the practice is entitled to one week's notice no matter how long the employee has been employed. An Employment Tribunal is unlikely to impose an implied term requiring more notice to be provided by the employee. Therefore key employees' contracts should provide for a notice period commensurate to their importance so as to ensure that the Practice is not left in a difficult position following a resignation.

Failure to give an employee the correct notice period is a breach of contract that can result in a claim of wrongful dismissal to the Employment Tribunal. If this breach of contract is coupled with a failure to have provided within two months of commencing employment a written statement of terms and conditions the Tribunal is empowered to order the employer to pay to the employee a further sum of money representing between two and four weeks' pay. Such failure allows an employee at any time to apply to the Tribunal for a declaration of those terms and conditions, which might include a greater notice period than the statutory minimum.

In the particular situation given above, the employee is entitled to one week's notice only, as he has completed fewer than two years' continuous employment.

Michael Salter and Chris Bryden are barristers at 2 Gray's Inn Square Chambers: www.2gis.co.uk Legal points are provided for information and discussion only and are given without obligation. For specific legal advice consult your solicitor

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