REDUNDANCY - 07.10.2020

Redundancy pay if an employee fails to work their notice

Entitlement to redundancy pay

An employee can leave employment before the expiry of their notice period and still claim an SRP only if they: (1) agree with you to shorten their notice period; or (2) comply with the statutory provisions relating to counter-notice.

Agreement

If you expressly agree that the employee can leave your employment before the expiry of their notice period, they will still be entitled to receive an SRP. In employment law terms, you’ve simply agreed to bring forward their termination date.

Pro advice. If an employee leaves early unilaterally, they will forfeit their right to an SRP, unless they’ve complied with the statutory counter-notice procedure.

Statutory counter-notice procedure

The requirements are: (1) you must have given notice to the employee to terminate their employment by reason of redundancy; and (2)  the employee must give you written counter-notice, within the “obligatory period” of your notice, terminating their employment on a date earlier than the expiry of your notice. The “obligatory period” of notice is equal to the minimum notice period (whether statutory or contractual) that the employee is entitled to.

Example. Rishi has three years’ employment and his contract provides for statutory minimum notice. If his employer, Boris, gives him three weeks’ notice, the obligatory period and statutory minimum notice are the same. However, if Rishi is given six weeks’ notice even though he’s only entitled to three, the last three weeks of his notice will be the obligatory period.

Pro advice. If the employee serves a counter-notice before the start of the obligatory period and leaves their employment, it won’t be good notice and they will lose their right to an SRP.

Pro advice. The legislation is silent on how much notice the employee should give in their counter-notice - but some notice must be given.

If the employee serves a valid counter-notice and you either accept it or do nothing, they will be dismissed on the date of expiry of their counter-notice and will remain entitled to an SRP.

Response to counter-notice

However, the employee won’t be entitled to an SRP if, before their counter-notice expires, you serve a written response on them which both: (1) requires them to withdraw their counter-notice and to continue in your employment until the expiry of the original notice period; and (2)  states that, unless they do so, you will contest any liability to pay them an SRP in respect of their employment termination (see Follow up ).

Pro advice. If the employee complies, your original notice of dismissal will remain in effect.

Pro advice. If the employee doesn’t comply, they will be deemed to have been dismissed on the date of expiry of their counter-notice. However, they’re not then automatically entitled to an SRP. They can apply to an employment tribunal which will consider both their reasons for leaving employment early and your reasons for requiring them to remain, and then decide whether it’s just and equitable for them to receive an SRP. If the employee needed to leave early to start a new job which they might have lost if they had delayed their start, the tribunal is likely to find in their favour. The tribunal may award the whole, part or none of the SRP.

Objection to early departure on redundancy