This week Nicholas Snowden, Senior Solicitor at Clarkslegal LLP and Alison Wallace, head of employment practice at Steptoe and Johnson present their ideas on how to handle AML notice and pay.

The question:
“An employee has decided that she will not be returning to work from additional maternity leave and has resigned. Her employment contract has a notice period of one month. Is she entitled to one month’s salary and benefits even though she will not be working her notice? Would her resignation date be effective from the date on her resignation letter or one month later?“

Amanda Celliers

The answer:
Nicholas Snowden, Senior Solicitor at Clarkslegal LLP

The answer to the first question depends on the relevant employee’s length of service. If she has a contractual notice entitlement which is at least one week longer than her statutory notice entitlement, she is not entitled to be paid notice pay.

If this is not the case, she will be entitled to normal pay during the notice period. This complicated situation comes about because of section 87(4) of the Employment Rights Act 1996.

You will also need to read sections 86, 88 and 89 to get the whole picture. In this case, if the employee has less than four full years’ service she will have a statutory notice entitlement of no more than three weeks and will not therefore be entitled to normal pay during her notice period.

If she has four full years’ service or more, she will be entitled to normal pay, as her statutory notice entitlement would not then be more than a week less than her statutory notice entitlement.

Assuming she does not purport to resign with immediate effect (and there would be no obvious advantage to her in doing so), her termination date will be one month from the date when she gave notice, not the date of her notice letter.

Alison Wallace, head of employment practice at Steptoe and Johnson

An employee who does not wish to return to work after AML must give notice of termination required under her contract. If she is resigning with immediate effect and you are prepared to accept this then the effective date is the date her letter is received otherwise it is at the end of the one month’s notice period.

She is not entitled to pay for the notice period unless her contract provides for this. She will be entitled to all her accrued holiday pay however.

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HRZone highly recommends that any answers are taken as a starting point for guidance only.

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