Upon commencement of employment employees should be provided with a written statement of particulars of employment that normally specifies amongst other things the periods of notice that the employer and employee must give in the event of termination of employment. When the agreed duty to give notice is not respected an employee whose right to notice has been infringed may present a claim either in the employment tribunal or in the civil courts (normally the County Court) for compensation arising from the breach of that duty. Such a claim may be presented in both the employment tribunal and in a civil court as a breach of contract claim or in the employment tribunal additionally on the basis of an unlawful deduction.
An employer wishing to seek recompense for losses he or she sustains arising from a failure to give due notice by an employee may normally present a claim for breach of contract only in the civil courts although a claim may be brought by way of counterclaim in the employment tribunal when the employee concerned has presented a breach of contract claim. Losses which employers typically claim for in such circumstances include, for example, any additional costs arising from employing a temporary worker pending recruitment of a permanent replacement member of staff. The employment tribunals’ power to award compensation is limited to £25,000 whereas the civil courts have the power to award unlimited damages.
There are various possible defences to such a claim which depend on the circumstances in which the notice period was not given. For example, an employer is discharged of the duty to terminate employment with notice to an employee who is guilty of very serious or ‘gross’ misconduct because such conduct is regarded as amounting to a very serious breach of contract relieving the employer of his or her contractual obligations. Equally, where an employee is subjected to conduct by an employer which renders his or her position intolerable in circumstances amounting to ‘constructive’ dismissal that employee is relieved of all obligations that might otherwise exist relating to providing notice of termination.
The length of notice required of either party to an employment contract is normally stated in the written particulars of employment. However, additionally or where employees are not provided with such particulars employees are normally guaranteed by law once they have been employed for one month a minimum of one week’s notice for each year of continuous service up to a twelve week maximum.