1. What notice do employers generally have to give?
The requirement to give notice is often set out in the employment contract and it is likely to amount to a breach of contract if the required notice is not given. Where there is no employment contract, or no term regarding notice in the contract, there will be an implied term to give reasonable notice. What constitutes reasonable notice will depend on the particular facts of the case, including the parties’ contractual intentions.
Employers also have a statutory obligation to give notice, which is known as the statutory minimum notice period. Employees with continuous employment of at least 1 month but less than 2 years are entitled to at least 1 weeks’ notice. Employees with 2 years’ continuous employment or more are entitled to 1 weeks’ notice for each complete year, up to a maximum of 12 weeks’ notice.
Contractual notice vs statutory notice
Where the contractual notice exceeds the statutory minimum, the contractual notice will prevail. However, where the statutory minimum exceeds the contractual notice, the statutory minimum will prevail. Put simply, employees are entitled to get their contractual notice, subject to this being at least the statutory minimum.
2. What notice do employers have to give during furlough?
The notice that has to be given by employers during furlough is the same as stated above.
3. Do employees have to ‘work’ their notice during furlough?
Employers may want to pay in lieu of notice, however, under the Coronavirus Job Retention Scheme (“the Scheme”) employees must remain employed in order for the employer to reclaim any monies. Therefore, it will be more financially beneficial for employers to keep employees on furlough for all or some of the notice period. This means that at least part of the notice pay can be recovered.
4. How is notice pay calculated during furlough?
As with the notice period, notice pay will be based on employees’ entitlement under the employment contract, subject to the minimum statutory requirement.
The rules of calculating notice pay are complex and will depend on whether the employer is required to give only statutory notice or contractual notice.
5. How much are employers entitled to recover if employees remain on furlough during their notice period?
If employees remain on furlough during their notice period, the employer will only be able to recover up to 80% of their notice pay under the Scheme. This is also capped to the usual £2,500. Of course, this will change if the employee works part time (from July onwards) and the employer contribution to furlough is changing from 1 August.
6. Can employees on furlough and on notice of termination be asked to take holidays?
Yes but they must receive 100% of their normal pay and must be given appropriate notice – usually twice the length of time as the period of holiday.
Kiera Lee, Director, Mills Selig
Kiera has 20 years’ experience in employment law acting mainly for employers in contentious and non-contentious matters. Her client list includes leading NI Companies and large employers (up to 2,000 employees).
T: +44 (0)28 9044 5406