The starting point when considering the answer to this question is what is the required notice period that the employee is required to give?
If an employee has a contract of employment then it is normal for the notice period to be set out in the contract terms. This is known as contractual notice.
If the employee has no contract of employment or the contract does not contain any notice provisions then the default position is that the employee is required to provide statutory notice of one week after one month of employment. This is set out it in the Employment Rights Act.
Options if the employee fails to give notice
- Bring a claim for breach of contract.
It is rare for employers to take this step as it can be difficult to show what the loss is as a result of the employee’s breach. This is more likely to be relevant if there is a senior employee or someone involved in sales or a particular project where it is easier to prove your loss as a result of their breach.
- Obtain an injunction forcing the employee to remain on garden leave
If you have a garden leave clause in the employee’s contract then you could obtain an injunction forcing the employee to serve out their garden leave for the duration of the notice period.
Again, this is only likely to be worthwhile for senior employees or those that could potentially cause damage to your business if they went off to work for a competitor straight away (for example).
- Obtain an injunction preventing the employee from working elsewhere for the notice period
In the absence of a garden leave clause you could try to obtain an injunction requiring the employee to work out their notice. In practice, this is again not really going to be practical or worthwhile, let’s be honest who wants to force an employee into the workplace when they have already demonstrated that they do not wish to be there to the extent that you have had to obtain an injunction.
The reality is that in most cases there is little practically that an employer is likely to want to do to take legal action in respect of a notice period.
Practical steps to deter employees
From a practical perspective, there are some other ways that you can try to deter employees from leaving without notice, including:
- Refusing to provide a reference
This can be quite a powerful tool if an employee is refusing to give the required notice, as you can tell them that if they leave in breach you will either refuse to give a reference or state in a reference that the employee left without giving notice.
To be frank if an employee has left their last employer high and dry by leaving without notice then it says something about the way they are likely to behave in the future and therefore it may put off prospective employers.
You should remember that you are entitled to state in a reference anything that is true and you are not under an obligation to provide a reference if asked.
- Contract clause entitling you to a remedy
Increasingly we are seeing in contracts a clause which entitles the employer to withhold some pay or final payments owing to an employee in the event that they leave their employment without the required notice.
It is possible to include and enforce such a term, BUT you must be sure that the clause reflects a true estimate of your financial loss as a result of the employee’s actions and is not a Penalty Clause designed to penalise the employee.
I would therefore recommend that you think carefully about what the costs and business impact may be and draft accordingly. If you get this wrong and make a deduction that is a penalty then you may find yourself defending a claim for unlawful deductions from wages or breach of contract.
In Reality – Let it go!
I have had many a conversation with employers who are hopping mad that an employee has waltzed into their office and said they are leaving, or has just failed to turn up. I understand the frustration and operational difficulties that this can cause you, but in the majority of cases the best answer is to ‘let it go’ and move forward, channelling energy into finding a replacement or looking after customers in the meantime.
Ultimately it can be a lot riskier for a business to have an employee reluctantly coming into work every day and potentially having a negative effect on colleagues and/or customers, not to mention the risk that they may sabotage your business, intentionally or not.
Sometimes my best advice is that you forget it and move on.
- If you have not already given employees a contract or minimum terms required by law then I recommend that you get some drawn up and include details of how much notice you will need from the employee.
- Consider including a clause in the contract that will deter the employee from leaving without notice.
- Seek advice if an employee leaves without notice or informs you that they will be leaving without giving the required notice period.