The legal obligation on employers to provide employees with a written statement
of terms and conditions of employment is not fulfilled in may cases, and in
other cases is only partially fulfilled.
Statutory Minimum Notice Periods
In the absence of written statement of terms and conditions of employment
an employee who has been continuously employed for 1 month is statutorily entitled
to receive not less than 1 week’s notice (unless dismissed for gross
misconduct). Thereafter, once an employee has been employed for two or more
years, the minimum statutory notice entitlement rises by one week for each
completed year of service up to a maximum of 12 weeks after 12 years continuous
employment. However, the statutory notice periods are the minimum periods of
notice which an employee is entitled to receive. There are several cases where
an employee will be entitled to more than the statutory minimum.
The statutory minimum notice period that an employee who has been continuously
employed for 1 month or more is required to give to an employer is always 1
week, regardless of length of service.
Express and Implied Notice Periods
A written contract of employment will usually specify the notice period that
is applicable to an employee. However, in the absence of a written agreement
the two key factors that will determine whether an employee is entitled to
receive an additional period of notice over and above the statutory minimum
are the employee’s status, and the general practice within the industry/
business sector in which they work. For example, a person who holds a senior
position in an organisation, such as a director, can expect to receive up to
three months notice regardless of length of service. Managing Directors may
well expect to receive up to six months’ notice and in limited circumstances
may well argue that they are entitled to receive up to 12 months’ notice.
However, employers may be dismayed to learn that generally the converse does
not apply. In the absence of an express contractual notice period an employee
is usually only expected to give the statutory minimum notice period of 1 week,
regardless of status or length of service.
Wrongful Dismissal / Breach of Contract
If an employee is dismissed having only received the statutory minimum period
of notice, he or she may wish to bring a claim for Wrongful Dismissal on the
basis that the imposition of the statutory minimum notice period is not appropriate
or reflective of the status of the position which they previously held. It
is a claim which will be particularly attractive to senior managers and directors
who have been employed for less than one year and who are yet to acquire rights
in relation to an Unfair Dismissal claim.
It is certainly in the interests of employers, and usually in the interests
of employees to contractually express the specific notice periods that they
are expected to give and receive. In the absence of the same employers cannot
assume that the statutory minimum notice periods will automatically apply when
giving notice to employees, whereas they are unlikely to be able to expect
more than the statutory minimum notice period of 1 week in return.