ATL

Take notice

ATL solicitor, Philip Lott, explains the rules on how employees and employers in schools can end their employment

Every year, thousands of teachers leave their jobs, either to move posts or even to quit the profession. The vast majority resign in the customary way, giving the required notice and departing at the end of term. But what does the law say on notice rights? And what if the employer - or the employee - fails to give the required notice?

Notice provisions are a protection for both sides to the employment contract. For the employee, they are a reassurance that, short of committing gross misconduct, she or he cannot be fired without at least seeing the bullet coming. For the employer, they prevent unscheduled departures turning timetables into professional colanders.

When being given notice, employees have the benefit of two distinct entitlements to notice: first, statutory rights (in the 1996 Employment Rights Act) and secondly, contractual rights (set out in individual contracts or conditions of service).

The 1996 Act entitles staff to at least one week's notice for each completed year of employment, up to a maximum of 12 weeks. This means that an employee who has worked for, say, six years for an employer has a statutory right to at least six weeks' notice.

Contractual notice rights can vary considerably. Most teachers work under one of two arrangements: maintained schools in England and Wales operate the national Burgundy Book conditions. These provide that notice can be given (by either side) only for three dates in the year: by the end of February to finish on 30 April, by 31 May to take effect on 31 August, or by 31 October for a departure on 31 December. Independent school teachers generally either work under this Burgundy Book notice system, or provide for a full term's notice to be given on either side. Non-teaching staff sometimes have these arrangements but generally have shorter contractual notice rights.

Fortunately, employees get the best of both worlds here. They can claim whichever length of notice - statutory or contractual - is more beneficial to them. For example, a teacher with 11 years' service, but a contractual right to two months' notice, is nevertheless entitled to 11 weeks' (statutory) notice. If the employer fails to give proper notice (or pay in lieu), the individual can bring a tribunal claim for breach of contract. This is what is meant by 'wrongful dismissal' (not to be confused with 'unfair dismissal').

But sauce for the goose is also sauce for the gander. When an employee wishes to give notice, she or he also has similar obligations. The statutory requirements present no problem, since they impose only a minimum of one week's notice on departing staff. However, the contractual position is more problematic. To leave without giving proper notice (unless permission has been given) is a breach of contract and those contemplating this need to be aware of the possible consequences.

Firstly, the school or local authority (LA) may simply refuse to give a reference (or may give one in unsupportive terms). This is an easy penalty to apply. To the surprise of many, an employee has no legal right to a reference at all and you cannot challenge its contents unless it is either demonstrably inaccurate and/or damagingly misleading.

But the ultimate sanction for breach of contract is to sue for damages. Aggrieved employers can seek compensation if, as a direct result of receiving inadequate notice, they reasonably incur additional expense. The claim cannot include the normal cost of advertising the vacancy (since this would have arisen in any event), but if the employer is obliged to advertise more widely or expensively to fill the post at short notice, incurs greater administrative costs, or perhaps has to engage a supply teacher at a higher rate to fill the gap, these extra costs could be claimed.

Fortunately, in practice, it is most unusual for employers to take departing staff to court. Legal proceedings are contentious and expensive. Indeed, no LA to our knowledge has ever yet sued a teacher for leaving early. Nevertheless, there are no grounds for complacency. Independent schools have been known to withhold final salary payments from employees who 'do a bunk' - as security for consequent expenses. Similarly, some LAs take action to recover training expenses if they have funded a qualification and the employee's departure breaks a 'staying on' covenant.

Our advice to members is to think long and hard before leaving without proper notice. If you do decide to make a quick getaway and the employers enforce their strict legal rights, parting might not be such sweet sorrow.