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Most employers and employees are familiar with the term “giving notice” but what are the obligations as set out in the legislation for both? Derek McKay, Managing Director at Adare Human Resource Management provides more detail on the legislation covering minimum notice and has some practical advice for employers.
Minimum notice periods
Under the Minimum Notice and Terms of Employment Acts, 1973 – 2005, employers and employees must give the other party a specific minimum notice if either intends to terminate the contract of employment. For employees intending to take up a new job or just simply leave an existing one, they must give their employer notice, which is normally set out in the contract of employment. The notice period outlined in the legislation specifies that if the employee has been in employment for a period of 13 continuous weeks, they are obliged to give one week’s notice. However, if there is a greater amount set out in the contract, then this is the notice period they should give.
If an employee has less than 13 weeks continuous employment, then they are not obliged to give any notice.
In most instances, the minimum notice period set out in contracts of employment is one month, or usually greater for more senior roles. However, if an employee decides to leave and not serve out the notice period set out, there is little an employer can do in reality. It is highly unlikely that an employee would be ordered to see out the remainder of the period if the employer decided to pursue a legal case. However, the employer may be awarded financial compensation should they win their case but they would need to demonstrate that the business suffered a loss as a result of the early exit of the employee.
It is important to point out, that in all instances where an employee fails to provide adequate notice, the employer has no right to withhold wages or annual leave.
For employers, it depends on how long the employee has been in continuous employment as to how much notice they must be given. Notice may be given to employees for a number of reasons, including dismissal or redundancy.
|Length of employment||Notice period|
|13 weeks – 2 years||1 week|
|2 – 5 years||2 weeks|
|5 – 10 years||4 weeks|
|10 – 15 years||6 weeks|
|15+ years||8 weeks|
Notice in writing
If an employee is giving their notice, it is important to get the notice in writing to avoid any issues or disputes at a later date. And, if an employer is giving notice, then it should also be given in writing to protect them from any legal issues should the employee challenge it at a later stage.
Waiving Right to Notice or Accepting Pay in Lieu
Any provision in a contract of employment for shorter periods of notice than the minimum periods stipulated in the Acts has no effect. The Acts do not, however, prevent an employer or employee from waiving his/her right to notice or accepting payment in lieu of notice. If the employer does not require the employee to work out any part of their notice, the employer is obliged to pay the employee for that period.
The Acts do not affect the right of an employer or an employee to terminate a contract of employment without notice due to the misconduct of the other party.
What happens if an employee changes their minds? Employers can decide if they will accept an employee’s request to withdraw their notice. We advise that any such request is given in writing and employers should also respond in writing.
If an employer decides to reject the request, which they are entitled to do, then the employer should consider a couple of things before responding to the employee. Was the original notice given to the employer in writing by the employee; if not, it could be disputed that notice was ever given in the first instance. Also, the employer should give consideration for the reason for the withdrawal of the notice.
An employee can make a complaint to the WRC if they feel that their previous employer has contravened the Minimum Notice and Terms of Employment Acts, which may result in financial awards made against the employer.
Our advice to employers is to ensure that all correspondence relating to terminating contracts of employment is done in writing to ensure they are protected and there is a clear timeline of events.
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