Your notice period refers to the time between the date you formally advise your employer that you resign and the date your contract of employment will officially end.
Before resigning from employment, you will need to ensure you are complying with the legal requirements on you to resign with the relevant notice period.
How do I know what my notice period is?
Contractual notice period
In most cases, your contract of employment will specify the notice period you are required to give when resigning. This is your minimum contractual notice period.
Statutory notice period
If you have no written employment contract, you will still need to provide your employer with the statutory minimum notice period, which is the minimum legal notice that can be given by employees under law.
Under the provisions of section 86 of the Employment Rights Act 1996, the minimum notice period to be given by an employee with at least one month’s continuous employment but less than two years, is one week.
Employees with over two year’s service must give an additional week’s notice for every continuous year they are employed, up to a maximum of 12 weeks’ notice.
Contractual notice requirements are generally longer than the equivalent statutory period, reflecting a reasonable period in which your employer can, for example, find a replacement for your particular role.
If you are looking to leave you job without providing the requisite notice period, you should approach your employer to see whether this can be agreed. Any contractual notice period can be varied by agreement. However, your employer can choose whether or not to accept such a request.
Fixed term contracts
To terminate a fixed term contract early, you would usually work to the relevant statutory minimum period. Fulfilling a fixed term contract to full term would usually not require notice to be given.
Calculating your notice period
Depending on the notice period that you are required to give, either statutory or contractual, you must ensure that you calculate your effective date of termination to cover this entire period. Your notice period will usually run from the start of the day after you hand your notice in.
If you change your mind and would like to withdraw your notice, you should inform your employer immediately. However, your employer is not obliged to accept your decision. Your notice of resignation will remain in effect unless an agreement is reached between you and your employer that alters this.
Providing your employer with your notice period in writing
Your contract of employment will usually set out the manner in which you are required to give your employer notice, for example, in writing. If you have no written employment contract, or your contract is silent on how notice is to be given, you can give your notice verbally. There is no statutory requirement to give your notice in writing.
That said, it is sensible to have a clear record of your intentions – i.e. to terminate your contract of employment, as well as to specify the date of termination – that can be referred to at a later date, for example, to ensure you are paid up until your last day or in the event of an employment-related dispute.
Payment during your notice period
During your notice period, you will be entitled to your normal rate of pay and any benefits set out under your contract of employment, even if your employer has no work available for you.
If your employer asks you to leave immediately after handing in your notice, you will still be entitled to what’s known as “payment in lieu”. This is a one-off payment instead, or “in lieu”, of allowing you to work out your notice period.
Garden leave during your notice period
Having handed in your notice, your employer may place you on “garden leave”.
Garden leave may be used where the employer wants to keep you employed during your notice period, rather than simply providing pay in lieu of notice, but not at your normal place of work.
It is used by employers to try and prevent employees from accessing sensitive or confidential information, especially if they are leaving to work for a competitor, or to try and keep employees away from clients and other employees (‘poaching’).
An employer may also use garden leave if they are worried that your contract of employment is lacking in any, or any enforceable, post-termination restrictions, for example, working for a competitor.
As such, during a period of garden leave, an employee is asked to either work from home or from another location or to not come into work at all for the duration of the notice period.
If your employer places you on garden leave you will still be classed as being employed and, as such, will be entitled to your normal rate of pay and contractual benefits.
Restrictive covenants following your notice period
Your contract of employment may contain various clauses that seek to restrict your post-termination activities, for example, that you can’t work for a competitor or have contact with clients for a specified period of time after you leave. These contractual provisions, known as “restrictive covenants”, continue to operate after your employment has ended.
The most common restrictive covenants are as follows:
- non-compete clauses – restricting you from working for a competitor, usually within a certain geographical area.
- non-solicitation clauses – preventing you from poaching existing or prospective customers or clients.
- non-dealing clauses – preventing you from dealing with former customers or clients, regardless of who approaches the other.
- non-poaching clauses – preventing you from enticing former colleagues to join your new employer.
- confidentiality clauses – preventing you from passing on confidential information or trade secrets to your new employer.
Generally speaking, a restrictive covenant will only be considered reasonable for a period of up to 6 months post-termination. However, restrictions of up to 12 months may still be enforceable for former employees who held a senior role, or those with a specialised skillset.
Failure to provide the correct notice period
The contract of employment sets out legally enforceable terms and conditions that govern the relationship between you and your employer. In circumstances where either party breaks one of those terms, this is known as a breach of contract.
You may be in breach of your contract if you don’t provide the correct notice period. You may also be in breach if you fail to work your notice period when you are required to do so, or if you give notice verbally when you were contractually obliged to provide notice in writing.
Where a dispute between you and your employer over your notice period cannot otherwise be resolved, the matter may result in legal proceedings. Your employer could also take you to court if, after you resign, you breach any restrictive covenants contained in your contract of employment.
Seeking legal advice when resigning
There is a complex framework of legislation governing employment law rights and responsibilities, not least the law relating to restrictive covenants.
By securing expert legal advice from an experienced employment law specialist you can be confident that you will not be in breach of contract in providing the relevant notice period when resigning from your job.
Your legal adviser can also help to ensure that you remain within the scope of any contractual provisions that seek to restrict your post-termination activities.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.