Greater Manchester Pay and Employment Rights Advice Service Factsheet

Fixed-term contracts

Employees on fixed term contracts do not normally have the right to notice at the end of the contract, as the contract automatically expires on the termination date. Usually a fixed-term contract includes a clause that allows it to be terminated before the expiry date, and states how much notice has to be given in this case. If you have a fixed-term contract that does not allow for early termination then you should take advice if you or your employer wants to terminate it before the expiry date.

Gross misconduct

Employees who have been dismissed following an act of gross misconduct are not entitled to notice. Employers can dismiss on the spot, without notice, where an employee has committed gross misconduct. This might include things such as swearing, disobedience, drinking, using drugs, smoking, sleeping on duty, theft or dishonesty, violence and fighting. See our factsheet Disciplinary and Dismissals for more information about this if necessary.

Rights to notice

Employees have two rights to notice:

• the rights given by the contract – contractual rights
• the rights given by law – statutory rights

Statutory rights are minimum rights. Employers can improve on statutory rights in the contract of employment, but they cannot give less. If you have a written contract of employment then you should check what it says about your right to notice from your employer, and also how much notice you should give if you want to terminate the contract (they aren`t necessarily the same).

Contractual rights

A contract of employment should state the period of notice both you and your employer should give. If you do not have anything in writing, this does not mean you do not have a contract (see our factsheet on Contracts of Employment). If your employer has told you that a certain amount of notice will be given, or if it is custom and practice in the firm for employees to be given a certain amount of notice, then this will be part of your contract, even though it is not written down. If it is not written down, however, it may be more difficult to prove. If you do not have a written contract or any agreement with your employer, then the statutory rights apply.

Statutory rights

Your statutory entitlement to notice depends on how long you have worked for your employer:

• one week`s notice when you have been working for your employer for between one month and two years;
• one week`s notice for each whole year you have worked, if you have worked for your employer between two years and twelve years;
• twelve weeks` notice if you have worked for your employer for twelve years or more.

If you have spent any time on Youth Training, or other similar training schemes, this will not be counted in your length of service unless you were given employee status. Apprentices however are considered to be employees under the law and as such are entitled to notice.

Notice which you must give to your employer

If you have been continuously employed by your employer for one month or more then you have to give your employer at least one week`s notice. Your contract might say you have to give more, in which case you must. If you do not have a contract then you only ever have to give one week`s notice.

Resigning with immediate effect

In certain circumstances an employee is entitled to resign from a job with immediate effect. This is when an employer has acted in such a way as to fundamentally breach the contract by cutting hours and/or pay for example or by bullying the employee. Resigning with immediate effect means that you do not have to give your employer any notice that you are leaving your job.

Failure to give proper notice

Insufficient notice from either you or your employer gives the other person the right to claim damages for breach of contract.

If you leave without giving proper notice

Your employer cannot punish you by withholding money which is owed to you, unless it is agreed in advance in writing or is part of your written contract. If there is no such agreement the only thing your employer can do is take you to court to claim damages, and s/he must be able to prove that s/he lost money because you left without giving proper notice. Very few employers actually sue an ex-worker who leaves without giving notice, because damages can be very difficult to prove. If you do not want to work your notice period you could try to negotiate a shorter period with your employer.

If your employer does not give you proper notice

This is known as wrongful dismissal. This is not the same as unfair dismissal, it means that your employer has breached your contract and owes you notice pay in compensation for breaching the contract.

Claiming notice pay

It is a fairly easy process for employees to make a claim against an employer for notice pay and any other pay which is owed such as holiday pay. The first step is to send a grievance letter to your ex-employer; see our factsheet on Grievances for guidance on this.

Pay in lieu of notice

Your employer may tell you to stop work immediately and give you "pay in lieu of notice". This will affect you in different ways depending on your contract and the amount of notice you are given. You need to decide which of the three examples given below apply to you.

1. Your employer gives you proper notice but does not want you to work your notice. Your employer might say for example “your job will finish in four weeks time” and, if you are entitled to four weeks` notice, then that is proper notice. S/he may also say that s/he doesn’t want you to go into work any more. In this situation, you are entitled to be paid as normal although you do not do any work.

2. Your contract allows your employer to pay instead of giving you notice. It may either be written down in your contract, or it may be custom and practice in your firm or industry that your employer can give you pay instead of notice. This means your employer can finish you on the spot, but must pay you for the weeks you would have worked if you had been given proper notice.

3. Your contract does not allow your employer to pay you instead of giving you notice. If this is the case, you could claim breach of contract if your employer sacked you without notice. To stop you doing this your employer may give you compensation to cover the pay you would have got if you had been given proper notice.

If you fall into the first two categories you are being paid. Your employer will take out tax and National Insurance in the normal way. You will not be entitled to contributory Jobseeker's Allowance until the end of the time for which you are being paid.

If you fall into the third category you are getting compensation not pay. Your employer will usually give you what you would have taken home, but will not have to pay tax and National Insurance to the government. This means it is important for you to sign on as unemployed straight away. You will not get contributory Jobseeker's Allowance for the weeks that you have got compensation for, but you must ask that you are given National Insurance credits for these weeks, otherwise you will have a break in your National Insurance contributions record.

If you can`t work your notice period

If you work your normal hours during your notice period then you will, of course, be entitled to be paid your normal wage for this work. In some circumstances however it is not possible to work your notice, most commonly if you are off work sick. If you do not work your normal hours during your notice period, you will be entitled to be paid your normal pay or average pay* provided:

• you are ready and willing to work but no work is provided, for example if you are laid off ; or
• you are incapable of work because of sickness or injury and covered by a sick note; or
• you are on unpaid leave in accordance with your contract of employment.

*If you do not have normal weekly hours, you should be paid your average weekly pay, worked out over the 12 weeks immediately before your notice period started.

This rule applies

• to the statutory notice period only;
• whether it is the employer who gives notice or the employee.

This rule does not apply

• if your contract gives you notice which is at least a week longer than the statutory notice you would be entitled to, or
• if you take part in a strike after giving notice, or
• if you ask for time off in the notice period.

This is quite complicated, so you should take advice if necessary.

If you need more information about pay and employment rights, contact

Greater Manchester Pay and Employment Rights Advice Service

(  0161 839 3888) phone and answer machine

We provide telephone advice only and cannot see people face to face

or visit our website: www.gmemploymentrights.org.uk

Trade Unions

Trade unions help workers to get better pay and work conditions.

For further information contact us or:

North West TUC,

Tel: 0151 236 5432

Greater Manchester Pay and Employment Rights Advice Service is an independent research and information body funded by all local authorities in Greater Manchester under the AGMA grants scheme.

August 2010