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Esther Smith

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Ask the expert: More notice than we wanted


If a contract says four weeks’ notice but an employee gives more, do you have to let them work that notice? Matthew Whelan and Esther Smith advise.



The question:

We have an employee who has handed in his notice, giving three months’ notice. His contract states he only has to give four weeks. For business reasons we want him out earlier as he is looking to start up a business in competition. His contract states that he only has to give four week’s notice; can we respond to his resignation letter stating that we do not require him to work three months notice, and that he will finish in four weeks time?

Legal advice:

Matthew Whelan, solicitor, Speechly Bircham

Although you say that his contract states he only has to give four weeks’ notice, that doesn’t seem sufficient to prevent him giving longer notice.  In other words a requirement that to resign you have to give 4 weeks notice is not the same as saying you can only give four weeks’ notice. I can, however, see the problem. There are really three ways to deal with this.  First, require him to be employed for the notice period but put him on ‘garden leave’.  In theory you need a contractual right to do this but the worst that could happen is that he resigns earlier and sues you for the balance of his notice pay. Second, pay him in lieu of the notice period he has given (or an acceptable proportion of it). Third, persuade him to leave at the end of four weeks with no further payment.  This will be most difficult to achieve for the reason set out above-in giving longer notice he hasn’t done anything wrong.

My view would be it’s best to get him out of the business immediately by paying in lieu of notice since he may spend the notice period preparing to compete with you.  You should also have your employment contracts audited to make sure that in future you have the contractual flexibility to put someone on garden leave/pay in lieu of notice and, by the sound of it, to include some post termination restrictions on former staff.

Matthew Whelan can be contacted at [email protected]. For further information, please visit

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Esther Smith, partner, Thomas Eggar

I have no issue with you informing the employee that he is in breach of contract by providing you with more notice than he has to, and confirming that you will effect the termination of his employment after four weeks, as provided for in his contract.

He may argue against this and try to bring a claim for the balance of the notice pay, but at least you have not paid it out and have not had him in the workplace for the three month period.  In fact, as he is setting up on his own, you might want to terminate with immediate effect and pay him in lieu of his notice period and get him out of the work place now.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

2 Responses

  1. A complication ..

    If an employee resigns and gives more notice than required and this is accepted, but then the employee decides to leave after serving more than the notice in the contract but less than the notice in their resignation letter are they in breach of contract?

    1. You need to be careful about
      You need to be careful about this one. The fact that the employee is contractually bound to give a minimum 4 weeks’ notice does not mean that he/she cannot give a longer notice. The wording only prevents him/her from giving a shorter, not longer, notice. After she gives the employer the notice dictating a certain end date, her right as an employee is as good as any others up to that date. The only legal way to get rid of her before that date is for the employer to initiate a procedure which is the same as that used to remove any other employees, such as on the grounds of gross misconduct or fraud, and somehow complete that procedure before the end of the notice period given by that employee.


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