‘I’m not working my notice’

An employee has resigned and told you they’re not working their contractual notice. What can you do?

Breach of contract

Technically, this situation would amount to a breach of contract – although the breach would only occur at the point the employee failed to turn up during their notice period. Before that, it’s merely an intention to breach the contract.

Your options

Try persuasion. You can’t force the employee to work their notice, but you can point out that this will put the employee in breach of contract and it could cause difficulties for their colleagues, as well as the business.

However, apart from the fact that it may not make any difference, legal action is usually not worthwhile or cost-effective where an employee refuses to work some or all of their notice period.

No work no pay

A more persuasive approach might be to point out that as the employee will be in breach of their employment contract you won’t have to pay them for any time they don’t work. Some employees wrongly assume that they are entitled to receive full notice pay regardless of whether they work the entire notice period.

Alternatively, you could try to negotiate a shorter notice period, such as six weeks instead of three months. This may give you sufficient time to find and train a replacement.

Put it in writing

Where a reduced notice period is agreed, always confirm it in writing, including the circumstances that led to the agreement. This ensures that you won’t have to pay the employee for the remainder of their original contractual notice period and prevents them from claiming unfair dismissal; that is that you converted their resignation into a dismissal.

The letter should set out the revised date of the termination of their employment, that their contract of employment will continue in force and that they will remain bound by all the terms of their contract (including, but not limited to, their duties of loyalty and confidentiality). The letter should remind the employee that they are not entitled to perform any work for any other employer (or in any capacity of self-employment), until after their revised termination date.