Introduction ⚓︎

A contract of employment may be terminated (subject to the fairness of the reason for termination) by either party giving notice to the other. How much notice, how it is given, when it takes effect and receipt of payment or other benefits are all questions that may give rise to dispute.

Statutory or contractual? ⚓︎

Under Article 33 of the Employment Rights (Northern Ireland) Order 996 (as amended) employers are obliged to set out in writing, as part of a statement of particulars, the details of the notice employees are entitled to give and receive. Employees have the right to a minimum period of notice (Article 118 ERO (NI) 1996 (as amended)).

Where there is a contractual provision for notice, providing it is equal to or more than the statutory minimum, the contractual provision will apply. In the absence of a contractual notice term the position is that reasonable notice should be given. The court / tribunal will consider what is reasonable in all the circumstances taking into account the position of the employee, length of service, their seniority, and salary. A court will imply a reasonable notice period but it will not be any less than the statutory minimum.

The statutory minimum notice periods apply where an employee has been continuously employed for one month or more. An employee is entitled to a week’s notice up until 2 years' continuous service and an additional week’s notice for each complete year of service up to a maximum of 12 weeks’ notice. The statutory notice an employer is entitled to receive is only 1 week.

When does notice begin? ⚓︎

Notice will start to run from the day after the date on which it is given. If the notice is expressed in terms of months it will be expire on the corresponding date of the subsequent month regardless of how many days are in that month – e.g. 1 month’s notice starting on 1st September will expire on 1st October.

Can a notice period be varied? ⚓︎

The requirement to give notice can be varied by agreement between the parties. The parties can agree to waive the requirement for notice and an employer may reserve the right to pay the employee in lieu of notice. The ability to vary agreements relating to notice is useful to both employers and employees to allow them to terminate the contract of employment earlier. If an employer wants to have the right to pay in lieu of notice they must include a provision in the contract of employment. Where an employer makes payment in lieu of notice the effective date of termination will be the date upon which the employee ceased working.

What is an employee entitled to during the notice period? ⚓︎

Employees (with normal working hours) are entitled to receive payment during their notice period if they are:

• ready and willing to work and there is no work available,
• incapable of work on grounds of illness,
• absent due to illness related to pregnancy or childbirth, on maternity, paternity or adoption leave, or on contractual holiday leave (Article 120 ERO (NI) 1996).

An important exception to this is where an employee is entitled to a contractual notice period which exceeds the statutory minimum by a week or more (Article 119 ERO (NI) 1996). In these circumstances an employer is not obliged to pay notice to employees who do not work during their notice period. Article 121 sets out the rules for those who do not have ‘normal’ working hours.

An employee’s contractual and statutory rights continue during their notice period (unless the employer makes payment in lieu of notice). This means that entitlement to certain benefits such as holidays will continue to accrue and employees must be given the opportunity to take holidays during the notice period or be paid in lieu.

Must an employee work during the notice period? ⚓︎

Many contracts of employment give the employer the option to require employee to remain away from work during the notice period (garden or gardening leave). The employee will continue to receive most other benefits under the contract. The benefit of this clause is the protection it may give where there is any risk involved with an employee having access to confidential or commercially sensitive information in the workplace.

Wrongful Dismissal / Breach of Contract ⚓︎

An employer who dismisses an employee without giving contractual or appropriate notice the employer may face a claim for breach of contract or wrongful dismissal. Employers are, however, entitled to dismiss without notice in certain circumstances where the employee is guilty of gross misconduct.

Conclusion ⚓︎

As is the case with all employment terms it is in the interests of employers and employees to contractually express the specific notice periods that they are expected to give and receive. There are specific benefits for doing so – increased notice periods and the right to pay in lieu of notice or not to make payment to employees who do not work their notice are dependent on having contractual terms specifying this.