What notice is the employee entitled to receive?

An employer and employee can agree contractual terms as to the notice period. In the absence of any contractual term, the statutory minimum notice periods to be provided by the employer are as follows:-

• Between 1 month and 2 years - 1 week's notice required
  
  
• Between 2 and 12 years - 1 week for every year worked, up to a maximum of 12 weeks

For example, if an employee has worked 8 years, in the absence of any contractual provision, they would be entitled to 8 weeks notice.

An Employment Tribunal can order that the employee should be entitled to more than 12 weeks notice because it is "reasonable" in that industry. For example, it may be that for senior managers in a certain sector, the usual notice periods are 6 months. It is rare, however, for a Tribunal to make such a finding.

If an employee is not provided with his statutory minimum notice period or contractual notice period, he may have a claim for breach of contract, otherwise known as wrongful dismissal.

What notice is the employee obliged to give to his employer?

Usually, the contract will specify what notice period the employee should give if he wishes to resign his employment. This can be varied by agreement.

If the contract is silent, the statutory minimum period of notice to be given by an employee who has been employed one month or more is 1 week. A much longer notice period may however be implied if it is reasonable in all the circumstances (i.e. what is normal for a person of that seniority and in the industry).

If the employee wishes to leave before the end of his contractual notice (or statutory minimum notice period), in practical terms, you have little remedies. You are not entitled as a matter of law to force him to work, even though he is in breach of contract. In certain circumstances, you may be able to obtain an injunction to stop the employee working for his new company during the notice period, but it would have to be shown that the new employer is a direct competitor and that there was a legitimate need to protect your interests- not an easy task. You may also sue the employee for the additional costs arising from his breach of contract , ie the cost of replacement staff for the balance of the notice period. Again, such claims are very rare.

What is "Garden Leave?"

Many contracts of employment give the employer the option to demand that you do not attend the workplace during your notice period, even though you continue to be paid. This is known as "garden leave"- the employee is expected to stay at home and not commence new work during this period. The logic behind this is clear. Once it becomes known that the employee is leaving the company, an employer may not want to take a chance to have the employee continue working where confidentiality and trade secrets become more of an issue (especially if you are going to work for a competitor). The employer will thus, not be in breach of contract to require the employee to stay at home during the notice period (as long as there is a provision in the contract giving the employer the right to insist on Garden Leave).

Jobsite have joined forces with specialist employment law solicitor Philip Landau, to bring you expert advice on your rights in all key areas of your working life. As a Jobsite user you are also entitled to receive a free initial consultation on all employment law issues from Philip.

Philip can help with a number of legal problems; perhaps you feel your employer isn't following their legal responsibilities, you believe you have been dismissed unfairly or you are unsure about clauses in your contract. Once he knows your specific situation he can let you know what your rights are and what action you can take.

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Philip Landau is a solicitor and partner, specialising in employment law, in the London legal firm Landau Zeffertt Weir.

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