How to deal with an employee’s pay when they don’t work their contracted notice period

Whether or not the employer must pay an employee for the notice period if he or she does not work it depends on the reason for him or her not working it.

In the absence of any agreement to waive the notice requirement, an employee who refuses to work the notice period required by his or her contract of employment will, technically, be in breach of contract. In these circumstances, there will be no duty on the employer to pay the employee for any part of the notice period not worked.

If, on the other hand, the reason for the employee’s resignation was a fundamental breach of contract on the part of the employer, the employee would be entitled to leave without notice. Again, the employer would not be obliged to pay for any part of the notice period that had not been worked.

If the employee does not work his or her full notice on account of agreed absence on holiday, then the employee will be entitled to be paid his or her normal contractual level of pay during the notice period. Similarly, if the employee was sick during the notice period and thus unable to come to work, he or she would be entitled to be paid statutory or contractual sick pay in the same way as an employee who had not resigned.

Finally, it is open to the employer and employee to agree mutually to waive the notice period, ie to bring forward the employee’s termination date. In these circumstances, the employer should make sure that the employee signs an agreement to this effect so that there can be no claim at a later date for unpaid wages.

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