What can I do if my employee doesn’t want to work their notice?

If they have worked for you for more than a month but less than two years, the statutory notice period is one week.

But in most cases, notice periods are longer than this. Usually between one to three months. You should find the specific amount of notice written in your contract. So, check this first.

When an employee hands in their notice, they usually want to leave as soon as possible, whether that’s to start a new job or take a break.

Sometimes an employee might want to leave because of a dispute with a colleague or because they’re unhappy with their working conditions. Regardless of the reason, be as understanding of your employee’s decision as possible and help them to leave on terms that suit you both. This doesn’t mean you have to let them go at once, but you should be on the same page.

You can agree to let them leave without working their notice, even if it’s in their contract, if it works for you.

To do this, you could pay them in lieu of their notice. This means the employee’s contract would end immediately and you would pay them a lump sum for the time they would have worked.

You will need to check if you have the contractual rights to do this, so look for a payment-in-lieu of notice clause in your staff contracts. Or you could compromise and agree on a shorter notice period.

But what if your employee is going to a competitor? If that’s the case, then garden leave may be an option.

Putting your employee on garden leave means they still have to complete their notice period, but they don’t actually have to work. You continue to pay them until their notice period ends, but they don’t have to complete any work or come into your workplace.

Crucially, they cannot start working for another employer until their notice period ends.

Garden leave helps to reduce the risk of a competitor gaining sensitive company information if your employee starts working for them straight away. It can also prevent them from trying to steal your clients. You can also help prevent a situation like this by including a restrictive covenant in your contract.

If garden leave isn’t written into the contract of employment, then you can’t enforce it on your employee. But you could explain how they would continue to get paid without having to do any work if they went on garden leave, even if it’s not in the contract.

If they refuse to take garden leave or work their notice period, then you may be able to take it further.

If you have to enforce the notice period and your employee refuses to work it, then it would be considered a breach of contract on their part.

By law, your employee is contractually obliged to work their notice period up until their last day of employment. And if they don’t, then you don’t have to pay them for the time they didn’t work.

If your employee refuses to work their notice period, you could make a legal claim against them if your business suffers damage or losses as a result. This might be the case if your employee leaves suddenly, and you have no choice but to hire someone to replace them short-term. You may be able to claim expenses back.

However, you would only be to claim for the extra that it cost you to cover the employee’s absence above what you would have normally paid them in wages. You should also ideally have a clause in your contracts that allows you to do this, otherwise you could risk facing a claim for unlawful deduction of wages.

It’s worth remembering, however, that taking your employee to court should always be a final resort.

In most cases, it’s unlikely a tribunal will uphold a claim against an employee for refusing to work their notice. You would have to be able to prove their departure had a serious impact on your operations.

Peter Done is co-founder and managing director of Peninsula, an employment law, HR and health and safety advice specialist