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The Problem with HR

Feb 4, 2021

Kathy writes, speaks and consults in all areas relating to employment law. Kathy is the lead tutor for employment law programmes at the CIPD, and she writes extensively for them and speaks at training events and webinars. Kathy has written an employment law textbook which is currently on its 5th edition. She writes and speaks for various organisations including MBL Seminars, Instant CPD, DataLaw, Croners etc. She is a regular contributor to the Goldman Sachs 10,000 Small Businesses Programme and the Small Business Growth Programme. She had done work on CIPD programmes for ICS Learn and wrote materials for them.

What are notice periods, and who do they protect? (0:21)

  • The rights relating to notice protects both the employer and the employee directly. It covers the employee so that if you are dismissed, you have to get a certain amount of notice. 
  • It protects the employer because it says if the employee resigns, the employer must also receive a certain amount of notice. The amount of notice has to be set out in the contract of employment. 
  • This protects the employer in the way that they won’t just have employees disappearing on them. If an employee doesn’t work, notice what you can do about it. You cannot do much about it, unfortunately.
  • You cannot chain employees to their desks and say they cannot leave until they have done their work. The only thing you can do in a situation like that is sue for any damages that your organisation experiences from not having the employee working there.

What formula is in place as a strategy for notaries? (2:42)

  • When they are working out what notice to give an employee, they look at the contract as a starting point. They have to provide contractual notice and a redundancy situation they give contractual notice or statutory notice, whichever is longer. 
  • Statutory notice is one week for every year of service, up to a maximum of 12 weeks. If an employee has worked for at least a month, they get a week’s notice anyway. 
  • If the contract is silent on notice, it shouldn’t be because notice is one factor that should be included in a written statement of initial employment particulars. 
  • If it is silent, then when the employee is dismissed for any reason, you would still have to give such notice. If someone has been employed for less than four weeks and their contract doesn’t state anything different, they would not be entitled to a notice period. 

What is the significance of having a Paylon Clause or a Garden Leave Clause, and what happens if a director does not have one? (5:37)

  • Paylon stands for pay in lieu of notice and what that means is that instead of keeping the employee on a payroll, you work out how much they would have earned during their notice period, and you pay it as a lump sum, and they leave immediately. 
  • However, if you have not got a Paylon clause, this is breaching contract because the contract says you will give x weeks of notice, and if you do not provide that notice, you are technically breaking the agreement. 
  • A Paylon clause will say that they reserve the right to pay you in lieu of notice and terminate an employee immediately, so you do not have the right to pay somebody in lieu of notice if it is not started in the contract agreement. 

What happens if the termination happens due to misconduct or a three-month notice period, and there’s a month during which the employee is needed could an employer change their minds? (21:56)

  • If an employee has been dismissed, following a series of warning, they do get their notice. A lot of people do not realise this. If it is gross misconduct, then it’s summary for an immediate dismissal which means they do not get any notice. 
  • In a situation where an employer thinks, no they really want the dismissed employee back, Kathy warns that this situation can be rather tricky on employee relations. 
  • Looking at it legally, the contract has ended so you can’t end the contract, and suddenly one person says it is back on after changing their minds. 
  • The employer could go to the employee and say that they have made a mistake and they would like them to return to work, and the employee could accept this gesture or not, but you cannot impose it on the employee to return to work after the contract has ended. 

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