Chapter 16Employing labouremployer gives notice, even in accordance with the con-
tract of service or under the statutory provisions of the
ERA 1996, he may still face a claim for unfair dismissal
or a redundancy payment.
The most important practical aspect is the length
of notice to be given by the parties, in particular the
employer. The ERA 1996 contains statutory provisions
in regard to minimum periods of notice and the only
relevance of the express provisions of a particular con-
tract of service on the matter is that a contract may
provide for longer periods of notice than does the ERA.
Under the ERA an employee is entitled to one week’s
notice after employment for one month or more; after
two years’ service the minimum entitlement is increased
to two weeks, and for each year of service after that it is
increased by one week up to a maximum of 12 weeks’
notice after 12 years’ service.
An employee, once he has been employed for one
month or more, must give his employer one week’s
notice and the period of one week’s notice applies for
the duration of the contract so far as the employee is
concerned, no matter how long he has served the
employer. It should be noted that, so far as oral notice
is concerned, it does not begin on the day it is given but
on the following day. This means, for example, that in
the case of oral notice seven days’ notice means seven
days exclusive of the day on which the notice is given
(see Westv Kneels Ltd(1986) below). There appears to
be no particular ruling on written notice and so it may
be that one could give notice starting from the date
of the letter if the letter was served on the employee (or
employer) on that day. However, it would seem prefer-
able to commence the notice from the day after service
of the letter.
Breach of the provisions relating to minimum periods
of notice do not involve an employer in any penalty, but
the rights conferred by the ERA 1996 will be taken into
account in assessing the employer’s liability for breach
of contract. Thus an employer who has dismissed his
employee without due notice is generally liable for the
wages due to the employee for the appropriate period of
notice at the contract rate.
It should be noted that the ERA 1996 provisions
regarding minimum periods of notice do not affect the
common law rights of an employer to dismiss an em-
ployee at once without notice for misconduct, e.g. dis-
obedience, neglect, drunkenness or dishonesty. An
example is to be found in Connorv Kwik Fit Insurance
Services Ltd(1997), where the managing director of an
insurance company, who had falsely declared when sign-
ing a professional indemnity insurance form that he had
not been involved with any company that had been
wound up, was guilty of gross misconduct and could be
summarily dismissed.
In practice, a contract of service is often terminated
by a payment instead of notice and this is allowed by the
ERA 1996.
In these days when there is a great need for skilled
personnel, it is tempting for employees to break their
contracts by leaving at short notice to go to other jobs.
However, in Evening Standard Co Ltdv Henderson
(1987) the employer, Evening Standard, was granted an
injunction to restrain an employee from working for a
rival during his contractual notice period of 12 months
as long as the employer agreed (which he did) to provide
him with remuneration and other contractual benefits
until the proper notice period would have run out, or,
alternatively, let him stay at work until the proper notice
period had expired.By agreement
As in any other contract, the parties to a contract of
employment may end the contract by agreement. Thus,
if employer and employee agree to new terms and con-
ditions on, for example, a promotion of the employee,
the old agreement is discharged and a new one takes
over.
An employee could agree to be ‘bought off’ by his
employer under an agreement to discharge the existing
contract of service. In this connection it should be noted
that discharge of a contract of service by agreement is
not a ‘dismissal’ for the purposes, for example, of an557Westv Kneels Ltd(1986)Julie West claimed that her employers had dismissed
her unfairly. An employment tribunal decided that the
claim failed because she had not been employed for the
necessary qualifying period. This was true if the week’s
notice commenced on the day it was given. If it started
the next day she would qualify. Mr Justice Popplewell
decided that it accorded with good industrial practice
that in the case of oral notice seven days’ notice meant
seven days exclusive of the day on which the notice was
served. This meant that Julie West had in fact been
employed for the necessary qualifying period.