Notice

 
Giving notice

If you wish to leave your job you will have to give notice of resignation to your employer. How much notice you are obliged to give will depend on your contract or written particulars of employment.

Always notify your employer of resignation in writing. Your contract of employment or local policy may insist on this.

In law, a verbal resignation may in some circumstances be binding. It would need to be shown that you intended to resign and that your employer accepted the resignation.

Your notice period usually runs from the start of the day after you handed it in.

Your employer may take the view that you have an implied contractual notice period even if you have never signed a written contract. In law, a contract does not have to be written and can be implied. Your employer may also have a policy on notice periods that has been made available to you. Alternatively, all of your colleagues doing the same job as you may have an agreed notice period which you would have been aware of.

In these cases, unless you have specifically objected to the notice period in writing, it may become an implied term of your contract since you were aware of the notice period and did not challenge it.

If there is no contractual notice period (either written or implied) and your employer does not have a policy on this, you would usually be required to give the minimum statutory notice (see below for more information).

This is the minimum legal notice that both you and your employer are required to give.

Your employer should give you:

• one week's notice if you have been employed continuously for one month or more, but less than two years
• two weeks' notice if you have been employed continuously for two years.

You should also be given an additional week's notice for each further complete year of continuous employment (to a maximum of 12 weeks).

If you have worked with your employer for at least one month, you should give them at least one week's notice. If you have been employed for less than one month, you should give reasonable notice.

You should receive your normal pay and benefits during your notice period. This would include sick pay. If your employer asks you not to come into work during your notice period (known as gardening leave) you should still be paid, unless you and your employer agree otherwise.

The terms and conditions of your contract should specify how much notice is required if you want to resign or you have been dismissed. Generally the higher your grade the longer your notice period - senior post holders could be required to give up to three months’ notice. You may wish to try and negotiate the length of notice with your employer, but it could be a breach of contract to resign without giving the correct notice.  

Legal issues

If you leave your job without giving appropriate notice your employer could sue you for compensation. Because employment contracts are 'personal' the courts will not force the employee to work for the employer. Compensation will be limited to damages representing the actual losses suffered by the employer. If, for example, it was necessary for the employer to recruit someone else at short notice at a greater cost than if the employee had worked out their notice, then the additional cost is recoverable from the employee. This does not justify the withholding of salary and the employer would still have to sue to recover any loss. A withholding of salary is likely to be an unlawful deduction of wages.

It is very unusual for nurses and health care support workers or Nursing Associates (NAs) to be sued when they do not give the required notice of resignation. 

If your employer has acted so improperly that you treat the contract as having ended, and you resign, this could be constructive dismissal. In order to claim constructive dismissal you would need to evidence that there had been an actual breach of contract or a breach of the implied term of trust and confidence or fair dealing. These cases can be quite difficult to prove so please seek our advice before considering resignation and read our dismissal advice.  

Frustration of contract is when something has happened which makes it impossible for you to go on working, for example where a medical condition makes it impossible for you to perform your contractual obligations. It could also be where the contract becomes illegal to perform, or cannot be performed, in the specified manner

Professional issues

If you are a nurse, midwife or nursing associate, you should also consider your  NMC code and your duty of care to patients. If you left your employer without serving your contractual or minimum notice period, there is the possibility that you could be reported to the NMC for putting patients at risk. 

Please contact us if you think you have no option but to leave your employer without working your notice period.

If you are unable to work the required notice period please discuss your options with your employer as you may be able to come to a mutual agreement. You can try to negotiate a shorter notice length, however, if your employer will not accept a shorter notice period you will still be obliged to work the notice period as stated in your contract or policy. Please ensure that any agreement is put in writing.

Withdrawing a resignation

In most cases, written resignation by an employee will be legally binding and cannot be withdrawn or changed without the agreement of the employer.

A verbal resignation can be binding in law. However, if it can be shown that the verbal resignation was not intended to be binding (for example if said during a heated argument) it can be argued that you can retract your resignation. Your employer's policy may state that resignations are only acceptable in writing.

Please contact us if you are in a dispute with your employer over your notice period.

If you are changing jobs but remaining with the same employer, you would usually need to give your current manager sufficient notice in line with your contract of employment. Sometimes they may wish to extend your notice period, for example if they are waiting for a replacement to start. Usually you will have a mobility clause within your contract which will allow your manager to do this. Check your contract and seek advice from Human Resources (HR) if needed.

PILON is a payment made when your employment is terminated without notice, or the employer does not require you to work your notice period, but will still pay you.

It is different from 'gardening leave', where you are employed and receive the usual benefits of employment - including pay during the notice period - even though you are not present at work.

Your employer can choose to pay you in lieu of notice. Pay in lieu of notice should usually be taxed in the same way your usual pay would be taxed. However, if the payment is damages for a breach of contract, this may not be taxable. Further advice should be taken from HM Revenue & Customs.

Sickness and notice

If you hand in your notice while on sick leave there is no obligation on you to return to work if you are not well enough to do so. Your normal contractual terms and conditions remain the same during the notice period. You must ensure you follow your local sickness policy which will state how often you should keep in touch with your employer, and how often you must send in sick notes.

Taking annual leave during your notice period

Annual leave should be taken with the agreement of your employer. There is no legal right to choose when to take your annual leave; your employer will need to balance your right to take leave against the needs of the service and to maintain appropriate staffing levels. You can ask to take annual leave during your notice period but it is up to your employer to agree this. 

Accrued annual leave

You should be paid for any leave that you have accrued and not taken when you leave your employer up to your first 28 days of holiday entitlement including bank holidays. This is known as your statutory holiday entitlement. Check your contract as you may well get more than the statutory entitlement.

A ‘compromise agreement’ or a 'settlement agreement' is a standard method of terminating employment in difficult cases, drawn up between the employer and employee as a final resolution to an ongoing dispute, usually involving the employee leaving the place of work. Much confusion has arisen in the health sector about the use of compromise agreements and particular clauses which feature in such agreements, commonly referred to as ‘gagging clauses’, which may prohibit an employee from raising a concern about patient safety issues. It is important that you seek advice from the RCN before signing an agreement.

Gagging clauses are unlawful and cannot be enforced in public interest disclosure cases. The Public Interest Disclosure Act 1998 (PIDA) protects against victimisation of workers who speak out against genuine concerns about malpractice. Please see raising concerns for more information. 

If you think that a gagging clause is being proposed, we strongly advise you to contact us for support and advice.

If you have concerns about patient safety issues, please see the raising concerns pages where you will find information and advice to help you raise concerns wherever you work - in the NHS or independent and social care sectors.