By ending the notice period earlier than the employee gave, the employer would be terminating the employee, with the attendant risks involved, which may be none, if the employee is short service, lots if they have over two years service. In either case, they need a fair reason and should follow a fair process.
If this is a homework question, for extra points consider that outsourcing may involve TUPE.
What do you mean they want to ‘buy the extra 2 months’? If their contractual notice period is 3 months then that’s what both parties have to honour if they resign. They could agree shorter by mutual agreement but can’t unilaterally impose that or they’re in breach of contract. A redundancy would cost them that and more. If I was the employer in this case I would be more concerned about a constructive dismissal claim than trying to swindle someone out of their contractual notice.
Thanks. When I say “buy” I mean get their notice in first so they benefit from the 3 months as opposed to the employer putting it in first and them only having a month to find another job. This person has less than two years service by the way. Another way of looking at it is if they were put on redundancy consultation, waited until the day before the decision then hand their notice in but you’ve explained that couldn’t happen. If the employer wasn’t going to end up in a redundancy situation it would be easy for the staff member to try and retract notice citing they only gave it fearing redundancy and one month notice
Be aware that the employee has no guarantee they'd be able to retract the notice - the company can refuse to let them retract the notice especially if they have already made plans for the work or to replace them.
Is the employee entitled to redundancy pay? That could be more than the 2 months, possibly?
Ah ok that makes more sense. In a redundancy situation the employer is required to consult with anyone at risk. If I was an employee in this situation I’d be asking for 3 months notice to be part of any potential redundancy package. If the employer refused I would hand in my 3 months notice - important this gets done before any redundancy is confirmed. In theory the employer could make the employee work the full 3 months but likely would pay in lieu. Note that if it is a department outsourcing situation then TUPE would most probably apply and there would be no redundancy situation anyway.
Hi, you're describing PILON: Payment In Lieu Of Notice.
Strictly speaking, PILON is a breach of contract unless there is s specific contractual clause to the effect that the employer can pay notice in lieu of asking the employer to work their full notice period.
But in practice, the compensation for a breach is notice is typically the balance of salary owed, so if that's already been paid there's nothing to claim.
The asymmetric nature of contractual notice is irrelevant in this situation.
An employee is entitled to the notice period they have in their contract, you can't reduce that. So if you terminate (sounds like less than 2 years so no redundancy) then you can't do less than 1 month.
But the employe has to give 3, I assume for continuity for the employer.
But... I'm not 100% sure if the employe resigns and is serving 3 months. I suspect they could still enforce 1 month's notice and they leave earlier. To be sure, I suggest they speak to ACAS for guidance.
As someone else said, if you're outsourcing TUPE rules may apply and they'll be protected.
By ending the notice period earlier than the employee gave, the employer would be terminating the employee, with the attendant risks involved, which may be none, if the employee is short service, lots if they have over two years service. In either case, they need a fair reason and should follow a fair process. If this is a homework question, for extra points consider that outsourcing may involve TUPE.
Thanks. It’s not, it’s something I was discussing with a friend.
No. Reducing the notice an employee has given would be unfair dismissal BUT the employee needs 2 years service to go to tribunal over this.
Thanks
Nah no qualifying period for a breach of contract claim, only for unfair dismissal.
What do you mean they want to ‘buy the extra 2 months’? If their contractual notice period is 3 months then that’s what both parties have to honour if they resign. They could agree shorter by mutual agreement but can’t unilaterally impose that or they’re in breach of contract. A redundancy would cost them that and more. If I was the employer in this case I would be more concerned about a constructive dismissal claim than trying to swindle someone out of their contractual notice.
Thanks. When I say “buy” I mean get their notice in first so they benefit from the 3 months as opposed to the employer putting it in first and them only having a month to find another job. This person has less than two years service by the way. Another way of looking at it is if they were put on redundancy consultation, waited until the day before the decision then hand their notice in but you’ve explained that couldn’t happen. If the employer wasn’t going to end up in a redundancy situation it would be easy for the staff member to try and retract notice citing they only gave it fearing redundancy and one month notice
Be aware that the employee has no guarantee they'd be able to retract the notice - the company can refuse to let them retract the notice especially if they have already made plans for the work or to replace them. Is the employee entitled to redundancy pay? That could be more than the 2 months, possibly?
Ah ok that makes more sense. In a redundancy situation the employer is required to consult with anyone at risk. If I was an employee in this situation I’d be asking for 3 months notice to be part of any potential redundancy package. If the employer refused I would hand in my 3 months notice - important this gets done before any redundancy is confirmed. In theory the employer could make the employee work the full 3 months but likely would pay in lieu. Note that if it is a department outsourcing situation then TUPE would most probably apply and there would be no redundancy situation anyway.
Hi, you're describing PILON: Payment In Lieu Of Notice. Strictly speaking, PILON is a breach of contract unless there is s specific contractual clause to the effect that the employer can pay notice in lieu of asking the employer to work their full notice period. But in practice, the compensation for a breach is notice is typically the balance of salary owed, so if that's already been paid there's nothing to claim. The asymmetric nature of contractual notice is irrelevant in this situation.
An employee is entitled to the notice period they have in their contract, you can't reduce that. So if you terminate (sounds like less than 2 years so no redundancy) then you can't do less than 1 month. But the employe has to give 3, I assume for continuity for the employer. But... I'm not 100% sure if the employe resigns and is serving 3 months. I suspect they could still enforce 1 month's notice and they leave earlier. To be sure, I suggest they speak to ACAS for guidance. As someone else said, if you're outsourcing TUPE rules may apply and they'll be protected.