There is often ambiguity around notice periods – e.g, how long can they be? How much do you have to give? – so to help clarify the situation as much as possible we have put some of the most asked questions to our legal expert Philip Landau…
What notice are you entitled to receive?
Although you can agree specific notice with your employer, which forms part of the terms of your contract of employment, there are statutory minimum notice periods which apply. These are:-
- Between 1 month and 2 years worked – 1 week’s notice
- Between 2 and 12 years – 1 week’s notice for every year worked, up to a maximum of 12 weeks
For example, if you have worked 10 years, in the absence of any contractual provision, or where your contract provides less than the statutory minimum, you would be entitled to 10 weeks notice.
What notice must you give to your employer?
Usually, your contract of employment will specify what notice period you are required to give if you resign, although this can be varied by agreement.
If your contract is silent, the statutory minimum period of notice to be given by you if you have 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 someone of a similar seniority in your industry sector).
If you wish to leave before the end of your contractual notice, in practical terms, your employer does not have a great deal of options. Your employer cannot force you to work, even though you may be in breach of contract. In certain circumstances, your old employer may, however, be able to obtain an injunction to stop you working for your new employer during the notice period, but they would have to show that the new employer is a direct competitor and that there was a legitimate need to protect your old employer’s interests. Such claims are likely to be brought against senior executives only.
Your old employer may also bring a claim against you for the additional costs arising from your breach of contract (such as the cost of replacement staff for the balance of the notice period.) Again, such claims are very rare and they are more likely to be brought against senior personnel only.
What is “pay in lieu of notice”?
Otherwise known as a “PILON” clause in your contract of employment, this is where you are paid for your notice, without having to work it- hence it is paid “in lieu”. This could be part or all of your notice depending on how much notice your employer wants you to work. There is usually no entitlement to additional holiday days for the period of your notice where you have a PILON clause, unless your contract of employment says otherwise. There is, however, an entitlement to benefits for the PILON period, unless your contract specifically excludes this.
What is “Garden Leave?”
You may be asked not attend the workplace during your notice period, even though you continue to be paid. This is known as “garden leave”- where you are expected to stay at home and not commence new work for the balance of your notice.
Garden leave is something many employers are keen on, especially where you are a senior executive with important client contacts and confidential information. Putting you on garden leave takes you out of the equation for the period of your notice which means you cannot contact clients or colleagues for that period. This is how it protects your employer. At the same time, you also have to be on standby in case your employer still requires all or part of your services for the garden leave period.
The information and any commentary on the law on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying upon it, is assumed by either Jobsite or Landau Zeffertt Weir. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a solicitor about your case or matter and not to rely on the information or comments on this site.