We are hearing a lot more cases where an employee refuses to work their notice period. This is, no doubt, a very frustrating situation for an employer. It is a difficult situation to accept and understandably can evoke an emotional reaction. Employers can feel let down and upset with what they perceive is a lack of professionalism and loyalty. When employees sign their employment contract of employment, they have a legal requirement to fulfil their notice. In practice, however, it is often difficult to impose this requirement of the contract.
An employee leaving some jobs without notice may not be a big deal. If you do need this employee to work as much of their notice period as possible, it is advisable to have a meeting with them to understand why they are not giving the correct notice. Their new employer may be placing pressure on them or there may be something going on in their personal life. There is a chance that the reason is due to something which has happened in the workplace, which may be easily resolved. If you can better understand their circumstances, and show empathy for their situation, it may lead to a better position in terms of negotiating an acceptable notice period to both parties. In these circumstances, where a lesser notice period is agreed, it is important to confirm in writing that the Company will not pay the employee for the portion of notice not worked.
If the employee is still refusing to work the notice period outlined in their employment contract, they are technically in breach of their contract. You should remind them of that. There is the option for you to pursue a legal case against this employee for a breach of a statutory duty or breach of contract. You need to consider this action carefully as it can be expensive and time-consuming and will not change the fact that the notice period is not being worked. If you pursue the legal route compensation may be awarded to you, should you win such a case. However, it may be necessary to demonstrate that a loss was suffered as a consequence of the employee leaving employment without providing adequate notice. Therefore, it is advisable that any such legal action should be considered very carefully, taking professional advice first.
It is important to note, that in all cases where an employee refuses to provide adequate notice, the employer has no right to withhold pay for annual leave, or any wages outstanding, as these may constitute offences under other legislation. Two wrongs don’t make a right!