Statutory minimum notice

It is always best to expressly set out details relating to notice pay on termination of employment in the contract of employment itself but what happens if nothing is put in writing?

In such cases the parties would need to fall back on the minimum notice provisions which are set-out in common law and in sections 86-91 of the Employment Rights Act 1996.

We have set out below five key facts about these provisions:

1. The minimum notice which an employee must give to an employer after the first month of employment is one week. The minimum notice which an employer must give to an employee in the first year of employment (after the first month has elapsed) is one week, rising with each additional complete year of employment up to a maximum of 12 weeks after 12 years.

2. Technically, there is no minimum notice period which must be given by either party in the first month of employment. If the contract of employment doesn’t set out anything different then either party can usually (subject to the ‘reasonable notice’ point detailed below) end the employment with no notice during the first month of the relationship.

3. Where it is reasonable to do so, the court may imply a longer notice period than the Employment Rights Act 1996 requires. What constitutes ‘reasonable notice’ is decided on a case-by-case basis looking at factors such as the typical notice period for the job; the notice period of any colleagues and the employee’s status and seniority. For example, a one month ‘reasonable notice’ period was implied by the courts for a hospital manager (Hall v John Randall Associates) and a three month period was implied for a company director (Free Newspapers Limited v Urwin).

4. There are quirky rules relating to the payment of notice pay where an employee is absent from work at the point that notice is given. They result in those with longer notice periods being potentially worse off. If the notice period to be given by the employer is statutory minimum notice or less than one week more than that minimum then, if an employee is absent during the notice period (either on family leave, sick leave, or holidays), they are entitled to receive full pay for their notice period.

5. If the notice period to be given by the employer is at least one week more than the statutory minimum then, if they are absent during the notice period due to sickness, family leave or holiday, they are only entitled to what they would usually receive for such absences (e.g. statutory sick pay, statutory maternity pay, etc.).