RIGHTS
TO NOTICE AND REASONS FOR DISMISSAL (PL707 REV
14 - URN 05/1670)
Introduction
This
document outlines the provisions relating to rights to notice
and written reasons for dismissal contained in employment legislation
and explains how a complaint is settled. It gives general guidance
only and should not be regarded as a complete or authoritative
statement of the law. This booklet does not deal with an employee’s
right under the legislation to make a complaint to an employment
tribunal if he or she considers he or she was unfairly dismissed.
For information on this right see the document Unfairly
Dismissed? (PL712).
Further information
can be obtained from any office of the Advisory,
Conciliation and Arbitration Service (ACAS).
Rights to
notice
Legislation gives the right both to employer and employee of a
minimum period of notice of termination of employment, provided
that the employee has been continuously employed for one month or
more.
If a contract
of employment gives the employer or the employee rights to longer
notice than the minimum in the legislation, then the longer period
of notice applies.
The
legislation does not prevent either employers or employees from
waiving their rights to notice or from accepting a payment in lieu
of notice. Nor does the Act affect the right of either party to
terminate the contract without notice if the conduct of the other
justifies it. The question of whether termination without notice
is justified depends on the circumstances of the individual case
and in the event of dispute can be finally determined only by the
courts or employment tribunals.
Where the
right to minimum notice does not apply
The employee’s
right to a minimum period of notice does not apply to:
- anyone
who is not an employee, for example an independent contractor
or free-lance agent;
- a person
employed as a seaman on a ship registered in the United Kingdom
under a crew agreement the provisions and form of which are
of a kind approved by the Secretary of State for Transport;
- Crown servants
and members of the armed forces;
- generally,
employees
who have fixed-term contracts (see Fixed-term contracts).
Continuous
employment
A period of
continuous employment forms the basic qualification for a number
of individual rights under the employment protection legislation,
including rights to notice and to receive a written statement
of reasons for dismissal; each right has its own qualifying period.
The document Continuous
employment and a week’s pay (PL 711), sets out the method of calculating
the period of continuous service.
Note: The
period spent by trainees on certain (but not all) Government training
schemes does not count towards a period of continuous employment
because the trainees are not employees (that is, they are not
working under a contract of employment). Further information and
advice on this point may be obtained from any office
of the Advisory, Conciliation and Arbitration Service, the addresses
of which are given at the end of this document.
Notice
to be given by an employer
An employer
is required to give an employee:
- at least
one week’s notice if the employee has been employed by the employer
continuously for one month or more but for less than two years;
- at least
two weeks’ notice if the employee has been employed by the employer
continuously for two years’ and
- one additional
week’s notice for each further complete year of continuous employment
for a period of less than 12 years’ continuous employment; and
at least 12 weeks’ notice if the employee has been employed
by the employer continuously for 12 years or more.
Notice
to be given by an employee
An employee
is required to give his or her employer at least one week’s notice
if employed continuously for one month or more by that employer.
This minimum is unaffected by longer service.
Fixed-term
contracts
Generally,
no notice of the expiry of a fixed-term contract will need
to be given, but if the contract is terminable by notice before
its expiry the minimum notice provisions (see above) will apply
to such early termination.
Employees
who were originally engaged on a contract specifying a fixed
term of one month or less, but who are continuously employed for
three months or more, are regarded for the purpose of the
legislation as being employed for an indefinite period and are
therefore entitled to a minimum period of notice. This benefits
employees who are employed under a series of short-term contracts
Apprentices
Apprentices
come within the definition of employee in the legislation. Normally
a contract of apprenticeship will in effect be a fixed-term contract
of some years’ duration and no notice will need to be given under
the legislation on its completion. If, however, it is terminated
before completion, the minimum period of notice provisions (see
above) will apply. If an apprentice remains with the employer
after completing apprenticeship, the period as an apprentice counts
for the purpose of qualifying for rights to notice under the legislation.
When notice
can be given
Unless a contract
states otherwise, notice can be given on any day. Normally the
period of notice will run from the start of the following day
so that if, for example, a week’s notice is given on a Monday,
the period of notice will begin on the Tuesday and expire at the
end of the following Monday. But there may be conditions in the
contract to be taken into account. The contract may, for example,
say that notice can only be given so as to expire at the end of
a pay week.
Termination
of employment on redundancy
An employee
who is being dismissed as redundant is still entitled to receive
due notice of termination under his or her contract or the legislation,
whichever provides the longer period. However, it is important
to note that where the employment is terminated because of redundancy,
there are, or may be, certain other requirements. See documents Redundancy consultation and
notification (PL 833) and
Redundancy entitlement
- statutory rights (PL808).
Transfer
of an undertaking
When a business
or undertaking, or part of it, is transferred to a new owner,
employees who are employed by the old owner at the time of the
transfer automatically become the employees of the new owner,
as if their contracts of employment were originally made with
the new owner. The new owner takes over the employment liabilities
of the old owner, with the exception of criminal liabilities and
occupational pension rights. See the document Transfers of
undertakings: a guide to the regulations (PL 699)
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