Not Working Your Notice UK

Employees leave roles in a wide range of circumstances. Most departures follow a planned notice period where both sides understand their obligations and responsibilities. Difficulties arise when an employee confirms they will not work their notice or simply stops attending work. For employers, this creates practical, financial and legal questions about pay, breach of contract and how to manage the end of the employment relationship without escalating avoidable disputes.

What this article is about: This article explains what happens under UK employment law when an employee does not work their notice. It provides HR professionals and business owners with a clear understanding of employer rights, employee liabilities and the options available to bring the employment to a close in a legally compliant way. The guidance covers notice obligations, final pay issues, deductions, breach of contract risks, restrictive covenants and how to approach an employee who refuses to work their notice.

A notice period is an important contractual and statutory mechanism. It allows an employer to plan future resourcing, maintain service levels and conduct a lawful and organised handover. When an employee does not work their notice, the employer must consider whether the failure is a breach of contract, what deductions (if any) can be made and whether post-termination restrictions remain enforceable. The employer must also respond proportionately and in line with the Employment Rights Act 1996, the common law of contract and any applicable internal policies. If the employee alleges that their resignation is due to a fundamental breach by the employer (constructive dismissal), the situation must be assessed differently because the employer’s alleged breach may affect contractual obligations.

Where the employment contract contains provisions for garden leave or payment in lieu of notice, the employer has additional flexibility to manage the exit. Garden leave can only be imposed where the contract expressly allows it; otherwise it must be agreed with the employee. Payment in lieu of notice (PILON) ends the employment immediately and is treated as taxable earnings under the Income Tax (Earnings and Pensions) Act 2003, meaning both contractual and non-contractual PILON are subject to tax and National Insurance. Likewise, contractual clauses that allow deductions for costs or losses associated with unworked notice must be considered carefully to ensure compliance with wage protection law and avoid unlawful deduction claims.

This article sets out a structured overview of the legal position, followed by practical steps for HR and line managers dealing with an early departure. The aim is to ensure employers take informed, defensible action that balances lawful entitlement with sensible commercial judgement.

Section A: Understanding Notice Period Obligations

Employees and employers both have clear legal obligations during a notice period. This section explains what those obligations are, how statutory notice interacts with contractual notice, and what rights an employer retains when the employee refuses to work their notice. HR teams need a structured understanding of these principles to assess contractual risk and determine the correct response.

1. Contractual Notice vs Statutory Minimums

An employee’s notice period usually comes from their written contract. Contracts may specify longer periods than the statutory minimums set by the Employment Rights Act 1996. Employers can rely on contractual terms provided they do not fall below the statutory requirements.

Statutory minimum notice applies only once an employee has at least one month’s continuous service. It requires employees to give one week’s notice. Contracts often require longer notice for more senior or specialist roles. If the contractual notice period is longer than the statutory minimum, the contractual period will apply.

If the employee is still within a probationary period, the contract often sets a shorter notice requirement. Statutory notice still applies once the employee has more than one month’s service, so employers must ensure their contractual drafting aligns correctly with statutory rights.

Fixed-term contracts may incorporate fixed notice provisions but many end automatically at the expiry date without requiring notice unless the contract states otherwise.

Where an employee leaves without working notice, continuity of service ends on the last day worked unless the employer lawfully keeps the contract alive through garden leave or payment in lieu of notice.

2. Employee Duties During Notice

Working the notice period is a contractual obligation. Employees must attend work, carry out their duties and act in good faith until the end of their employment. Conduct standards apply in the same way as during normal employment, and poor conduct during notice can be treated as a disciplinary issue.

Employers may have contractual rights to place employees on garden leave during the notice period. Garden leave preserves the employment relationship while preventing the employee from accessing clients, systems or confidential information. During garden leave the employee must remain available for work and comply with any reasonable instructions. Garden leave can only be imposed where an express clause exists; otherwise, the employer requires the employee’s agreement in line with case law such as William Hill Organisation Ltd v Tucker.

If the contract includes a payment in lieu of notice (PILON) clause, the employer may choose to terminate employment immediately and pay the notice period as a lump sum. Under the Income Tax (Earnings and Pensions) Act 2003, PILON payments are treated as taxable earnings and attract income tax and National Insurance. The employee is then free from the obligation to work the notice, although restrictive covenants remain in effect unless the employer has breached the contract.

3. Employer Rights When Notice Is Not Worked

If an employee does not work their notice, the employer may treat the failure as a breach of contract. The employer’s immediate concern is usually whether pay can be withheld. In most cases, employers pay only for work actually performed unless the contract entitles the employee to notice pay regardless of attendance.

Employers may also rely on contractual provisions that allow recovery of certain costs if the employee leaves without working their notice. These clauses must be drafted with care and comply with the wage protection rules in the Employment Rights Act 1996. They must reflect a genuine pre-estimate of loss rather than operate as a penalty. Any deduction from earnings must not reduce pay for work already performed below the National Minimum Wage.

Where the employer incurs real financial loss due to the employee’s early departure, the employer may have a contractual claim. In practice, pursuing a claim through the courts is uncommon and usually disproportionate to the value of the loss, but the right exists in principle. Employers should also consider any allegations of constructive dismissal, as these may change the legal analysis around breach.

Section A Summary

Notice periods are a mix of contractual and statutory obligations, and employers rely on these to ensure continuity and protect business interests. When an employee refuses to work their notice, the employer must assess the contractual framework, understand which statutory rights apply, and determine whether pay, deductions or contractual remedies may be triggered. Clear terms on garden leave and PILON provide employers with greater control and reduce legal risk when handling early departures.

Section B: Pay and Final Salary When Notice Is Not Worked

When an employee leaves without working their notice, the employer must determine what pay the employee is entitled to receive and what lawful deductions can be made. This section explains how UK wage protection law interacts with contractual terms and what HR teams need to consider before finalising pay.

Employees are generally entitled to be paid for the work they actually perform. If they do not work some or all of their notice period, they are not usually entitled to wages for the period they have not worked unless the contract provides otherwise. Employers must, however, ensure any deductions comply with the Employment Rights Act 1996, the Working Time Regulations 1998 and associated wage protection law.

1. Do Employees Lose Pay for Unworked Notice?

If an employee walks out or informs the employer they will not work their notice, they are not entitled to receive payment for the unworked portion. Employers should calculate salary up to the last day worked and process final pay accordingly. A final payslip must still be issued showing clear itemisation of all payments and deductions.

Some contracts contain provisions that entitle employees to full notice pay even if the employer chooses not to permit them to work the notice. This typically arises where a payment in lieu of notice (PILON) clause is triggered by the employer rather than by employee conduct. If an employer invokes a PILON, the employee must receive the full notice period payment even though they do not work it.

Under the Income Tax (Earnings and Pensions) Act 2003, all PILON payments are treated as taxable earnings. This includes both contractual and non-contractual PILON, meaning employers must apply PAYE tax and National Insurance in the usual way.

Where an employee unilaterally refuses to work their notice, the employer is not required to pay PILON unless the contract expressly guarantees it in all circumstances.

2. Lawful Deductions From Wages

Employers sometimes wish to recover costs associated with the employee’s early departure. The Employment Rights Act 1996 strictly limits when deductions can be made from wages. Deductions are lawful only if:

• they are required by law
• they are authorised by the employment contract
• the employee has given prior written consent

Any deduction linked to the employee leaving without notice must be set out clearly in the contract. Vague or punitive clauses are unenforceable and expose employers to unlawful deduction claims.

Common areas where deductions may apply include repayment of training costs, outstanding advances or equipment not returned. Employers must rely on express contractual wording and ensure the deduction reflects actual and reasonable costs, not penalties.

Employers must avoid making deductions that reduce the employee’s pay for work already performed below the National Minimum Wage. While notice pay itself is not payment for work done, deductions from earned wages must comply with wage floor protections.

3. Holiday Pay and Accrued Entitlement

Holiday pay accrues until the final day of employment. Even if the employee refuses to work their notice, they are still entitled to payment for any accrued but untaken statutory holiday entitlement under the Working Time Regulations 1998.

Employers cannot refuse to pay accrued statutory holiday as a penalty for leaving without notice. If the employee has taken more holiday than accrued, the employer may deduct the excess only if the employment contract expressly authorises the deduction and provided it does not reduce pay for work already done below the National Minimum Wage.

Some employers allow employees to use accrued holiday to cover part of the notice period. Employers may also require employees to take holiday during notice, provided they give statutory notice of twice the length of the leave being imposed (regulation 15 WTR 1998) or follow any enhanced contractual process if present.

Section B Summary

Final salary calculations depend on what work has been performed, whether the employer triggers a PILON clause and what deductions the contract permits. Employers must navigate statutory wage protection rules carefully to avoid unlawful deduction claims. Holiday pay remains payable regardless of the employee’s decision not to work their notice, and any deductions must be contractually sound, evidence-based and compliant with National Minimum Wage requirements. A final itemised payslip must be issued to ensure full transparency.

Section C: Contract Breach and Employer Remedies

When an employee refuses to work their notice, HR must determine whether the behaviour amounts to a contractual breach and what practical remedies the employer has. This section examines the legal position, the limits of enforceability and how early departure affects internal HR records and external references. Employers must balance contractual rights with realistic outcomes.

An employee who leaves without completing their notice can create operational disruption, financial loss and client risk. Although the employer may have legal grounds to pursue remedy, litigation is rare and usually disproportionate. Understanding what the law permits helps employers make sensible decisions.

1. Breach of Contract by Not Working Notice

Failing to work the required notice is usually a breach of contract. The employee has an obligation to work the notice period unless the employer ends employment earlier through garden leave or payment in lieu of notice.

A breach occurs where the employee:

• walks out without notice
• gives notice but stops attending work
• states they will not work the notice period
• refuses reasonable instructions during notice

This kind of breach is distinct from gross misconduct. The employee is resigning early, not committing an act that could justify summary dismissal.

Fixed-term contracts may contain provisions allowing early termination on notice. If the employee does not comply, the breach is assessed against the contract terms in the same way as for a permanent employee.

If an employee alleges that they are leaving early due to a fundamental breach of contract by the employer (constructive dismissal), the employer must evaluate the allegation separately, as it may alter the contractual analysis.

2. Damages and Recovery of Losses

In principle, an employer can bring a civil claim against an employee for losses caused by the breach. Examples include the cost of urgent temporary cover or financial penalties imposed by a client due to disruption. However, the employer must prove actual loss and show that the loss was reasonably foreseeable.

Courts do not enforce penalty clauses. Any contractual provision that operates as a deterrent rather than a genuine pre-estimate of loss is unenforceable. This limits the extent to which employers can recover predetermined sums linked to unworked notice.

Claims against former employees are rare because the sums involved are usually low relative to the cost and effort of litigation. Employers generally rely on contractual deductions, agreed settlement terms or negotiation rather than court action. Employers should not threaten litigation unless they have evidence of genuine financial loss and intend to pursue it.

Restrictive covenants remain enforceable despite the employee’s breach, provided the employer has not fundamentally breached the contract. Covenants must be supported by consideration at the point they were entered into, and the employment must end lawfully—whether through notice, PILON or mutual agreement—for covenants to stand as intended.

3. References and Internal Records

Early departure may be reflected in internal HR records. Employers should maintain accurate notes explaining the circumstances of the resignation and the employee’s failure to work notice. These records help manage future disputes, ensure consistent treatment and support any decisions involving restrictive covenants.

When providing references, employers must ensure accuracy and fairness. References benefit from qualified privilege, which protects employers from defamation claims provided the reference is given without malice and is factually accurate. Most organisations issue factual references confirming dates of employment and role only. If the employer gives a more detailed reference, they must avoid statements that are misleading or that unfairly disadvantage the employee. Mentioning that the employee failed to work their notice may be lawful if it is factual and relevant, but many employers prefer neutral wording to minimise risk.

The employee’s early departure does not affect the reasonableness test applied to restrictive covenants, but employers should assess whether enforcement is commercially or operationally necessary and proportionate.

Section C Summary

Not working notice is a contractual breach, but practical remedies are limited. Employers can pursue damages only where actual loss is clear and contract terms are enforceable. Internal records should reflect the facts, and references must remain accurate, fair and protected by qualified privilege. Restrictive covenants may still apply despite the early departure, although employers should assess proportionality before enforcement.

Section D: Managing an Employee Who Refuses To Work Their Notice

When an employee states they will not work their notice, the employer must respond promptly and in a measured way. This section sets out the practical steps HR should take, how to use garden leave or payment in lieu, and how early departure interacts with restrictive covenants. The aim is to close the employment relationship lawfully without escalating unnecessary conflict.

Employers should approach these situations with clarity, accurate documentation and an understanding of the contractual framework. A structured response helps maintain legal compliance, protects operational continuity and preserves evidence should any dispute arise later.

1. Initial Response and Communication

The employer’s first step is to confirm the facts. HR should contact the employee to clarify whether they intend to work their notice and record their response in writing. Employees sometimes change position when the contractual implications are explained clearly.

If the employee maintains that they will not work the notice, the employer should:

• confirm the contractual notice period
• set out the consequences for pay
• remind the employee of their obligations
• state the date employment will end

Written communication is important because it provides an audit trail and protects the employer if the employee later challenges the process. Employers should avoid escalating the situation but remain firm and accurate about the contractual position.

If the employee is absent rather than expressly refusing to work, the employer should follow its absence management procedure. This may involve requesting medical evidence, issuing warnings or treating the absence as unauthorised depending on the circumstances. Where the employee alleges constructive dismissal, this must be assessed separately because it may alter obligations on both sides.

2. Using Garden Leave or Payment in Lieu

If the employer prefers that the employee does not attend work, garden leave is a controlled way to keep the employee out of the business while preserving the employment relationship. The employer must have contractual authority to impose garden leave. During garden leave, the employee remains employed, must stay available for work and must not work for another employer. Without an express clause, imposing garden leave requires the employee’s agreement.

Payment in lieu of notice (PILON) is another option. A PILON clause allows the employer to terminate immediately and pay the employee for the notice period instead of requiring them to work it. Employers should check that the clause is drafted correctly and consider tax implications before invoking it. Under the Income Tax (Earnings and Pensions) Act 2003, PILON payments are treated as taxable earnings and subject to PAYE and National Insurance.

Triggering PILON removes the risk of the employee working against the employer’s interests during notice. It also preserves the enforceability of restrictive covenants because the contract ends lawfully and in accordance with its terms.

Garden leave and PILON are not interchangeable. Garden leave keeps the employee employed; PILON ends the employment immediately. The employer must choose the option that best protects its interests and complies with contractual wording.

3. Restrictive Covenants and Post-Termination Risks

Early departure does not usually invalidate restrictive covenants. Courts focus on whether the restriction is reasonable and designed to protect a legitimate business interest, not on whether the employee worked their notice. An employee who walks out may still be bound by non-solicitation, non-dealing, confidentiality or non-compete clauses.

Where the employee obtains a new role that increases competitive risk, enforcing covenants may be appropriate. HR should assess:

• the nature of the employee’s access to confidential information
• the competitive landscape
• the scope of the covenant
• the proportionality of enforcement

Employers should ensure all correspondence about covenants is clear and factual. Any enforcement action must be grounded in evidence of risk, not used punitively because the employee refused to work their notice. Covenant enforceability depends on proper consideration at the point the term was agreed, and the employer must ensure that the employment ended lawfully for the covenant to operate as intended.

Section D Summary

Managing an employee who refuses to work their notice requires clear communication, accurate contractual interpretation and decisive action. Employers should establish the facts, confirm the contractual position in writing and consider whether garden leave or PILON protects the business. Restrictive covenants often remain enforceable even when the employee leaves early. A structured, legally compliant approach ensures employers manage risk without escalating unnecessary disputes.

Frequently Asked Questions

Can an employer force an employee to work their notice?
No. An employer cannot compel an employee to work. The obligation to work notice is contractual, not enforceable through physical compulsion. If the employee refuses, the employer can withhold pay for the unworked period and treat the refusal as a breach of contract. The employer may also consider damages if financial loss is clear, though litigation is rare and must be grounded in evidence.

Can an employer sue an employee for not working their notice?
In principle, yes. Not working notice is a breach of contract, and employers can bring a civil claim for actual losses caused by the breach. The employer must prove financial loss and show that the loss was reasonably foreseeable. In practice, claims are uncommon because the cost of litigation often exceeds the value of the loss.

Can an employer withhold pay if the employee does not work their notice?
Employers do not have to pay employees for notice they have not worked unless the contract entitles the employee to notice pay regardless of attendance. Employers must still pay for all work performed up to the final day and must ensure deductions from accrued wages comply with the Employment Rights Act 1996. A final itemised payslip must be issued even when employment ends early.

Does the employee still get paid for accrued holiday if they leave without working notice?
Yes. Statutory holiday entitlement must be paid on termination under the Working Time Regulations 1998. An employer cannot refuse to pay accrued but untaken statutory holiday as a penalty for not working notice. If the employee has taken more holiday than they accrued, the employer may deduct the excess only where the employment contract expressly permits it and where it does not reduce pay for work already performed below the National Minimum Wage.

Can a reference mention that the employee did not work their notice?
A reference must be accurate and not misleading. Employers may mention that the employee did not work their notice if it is factual and relevant to the reference being given. References benefit from qualified privilege provided they are prepared without malice and are factually accurate. Many employers choose neutral wording to minimise dispute risk.

Do restrictive covenants still apply if the employee leaves without working notice?
Yes. Early departure does not automatically invalidate restrictive covenants. Their enforceability depends on reasonableness, legitimate business interest and whether the covenants were properly agreed and supported by consideration. Courts focus on the covenant terms, not whether the employee worked their notice.

Conclusion

When an employee does not work their notice, the employer must balance contractual rights with practical decision making. The legal framework gives employers clear entitlements around pay, deductions, breach of contract and post-termination protections, but each step must be grounded in accurate contractual interpretation and compliance with the Employment Rights Act 1996.

Employers cannot force an employee to work, but they can decline to pay for unworked notice and enforce contractual rights where appropriate. Holiday pay must still be processed, and any deductions must be authorised by the contract or by law. While breach of contract claims are legally possible, they are rarely pursued unless the employer has strong evidence of substantial financial loss.

A structured approach helps reduce risk. Employers should confirm the employee’s intentions in writing, calculate pay accurately, decide whether garden leave or PILON is appropriate and review any restrictive covenants to ensure post-termination protection. Accurate record keeping and consistent communication support defensible decision making and reduce the likelihood of later disputes.

Handled correctly, early departures can be resolved without legal conflict. Clear contracts, documented processes and informed HR management ensure the employer’s position remains strong while maintaining fairness and compliance throughout the exit process.

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