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Can staff leave without giving notice?

By Helen Taylor

FG Solicitors

IS quitting a job without giving notice acceptable? No,there are only few occasions where an employee is justified in shouting ‘I’m off’, grabbing their bag and heading for the exit.

Whether there is a longer notice period in the contract of employment or notice falls within the statutory framework, it is a reasonable expectation that an employee will provide a written resignation confirming the date they intend to leave, which reflects the relevant notice provision.

In some cases, a quick exit may be advantageous for an employer, as it avoids formal action being taken to remove an underperforming or misbehaving employee, or if there is little point in the employee staying on. Often, however, employers are left frustrated when a member of staff leaves without giving notice as their unplanned departure can be disruptive and costly. This scenario unfortunately appears to be happening more frequently. In a marketplace where there is competition for talent and fewer employers are taking up references, departing employees may be prepared to shrug off their responsibilities for new ventures as their actions are unlikely to jeopardise their new employment.

Whilst leaving without giving notice may be a breach of contract, one of the main problems is that an employee cannot be forced back to work. Employees are, however, often unaware they can instead be sued for damages. A claim for damages may be worthwhile if the premature departure has caused financial loss, i.e. when a new starter has to be paid more to secure their appointment.

Should there be a significant commercial threat because the new employer is a competitor, or if there is a risk that confidential information could be misused, an injunction may be an option. At this point, a well drafted contract of employment may be invaluable and provide the foundations for taking further action in the courts. The employee could be stopped from working for the duration of their notice period, or even longer if there are valid post-termination restrictions in the contract. Allegations of inducing a breach of contract are also a risk for the new employer.

Contractual documentation should not be underestimated when it comes to reminding employees of the possibilities should they breach their contract. The financial consequences of a breach of their obligations can be highlighted. Benefits could be at risk if there are properly constructed ‘bad leaver’ provisions. Although often thought to be unenforceable, withholding or recoupment provisions in the contract of employment that act to compensate the business if there is a legitimate interest in having the contract performed may be permissible; the amount due cannot be punitive and must be commensurate with the loss suffered.

Until an employee is unwilling to give contractual notice, the full commercial and financial risks to a business may have been ignored. From a risk management perspective, envisaging and planning for such a scenario will help identify what those risks look like. Effective policies and contractual provisions can then be introduced to control the risks. In our experience, employers who have given this some thought are more likely to be make the employee think twice before they head for the exit without a thought for their contractual obligations.

If you would like more advice contact a member of our team on 01604 871143 or visit www.fgsolicitors.co.uk

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