There is a statutory minimum period of notice that must be given to bring a contract of employment to an end, except where one of the parties is entitled to terminate without notice due to gross-misconduct, for example. The contract of employment can specify a longer period of notice but, where the contract provides for shorter notice than the statutory minimum, statute overrides the contract and the contract is treated as giving the statutory entitlement.

Where notice of termination of employment is given, either by the employer or the employee, and the employee has been continuously employed for one month or more, the employee has certain entitlements during that notice period. The liability of the employer to the employee is limited to the period of statutory notice to which:

• the employee is entitled, if given by the employer; or
• the employer is entitled, if given by the employee.

However, the above rights do not apply in respect of notice given by either the employer or the employee, where the employer is required to give the employee notice which amounts to one week or more than statutory minimum notice specified under Article 118 of the Employment Rights (Northern Ireland) Order 1996.

The calculation of notice pay during the notice period will differ depending on whether the employee has normal working hours.

Employees with normal working hours are entitled to be paid an average hourly rate calculated by dividing a week's pay (calculated in accordance with Chapter IV of the Employment Rights (Northern Ireland) Order 1996) by the number of normal working hours, for any hour during which they were:

• ready and willing to work but no work was provided by their employer;
• incapable of work because of sickness or injury; or
• absent from work wholly or partly because of pregnancy or childbirth, adoption leave, parental leave, paternity leave, on annual leave.

The same criteria applies for employees with no normal working hours except the calculation of notice pay is based on a week’s pay for each week of notice.

Therefore, even though the employee was off on sick leave prior to termination of their employment, they will still be entitled to payment during their notice period as set out above.