When an employee resigns and then advises they will not work all or part of their notice period, it can place immediate pressure on your business. Deadlines, client commitments, and team workloads can all be affected. While the situation can be frustrating, it is important to respond in a way that is lawful, measured, and consistent with your good faith obligations as an employer.
Your starting point should always be the employment agreement. If a notice period is clearly set out, the employee is expected to comply with it. An employee choosing not to work their notice, without agreement, is generally a breach of their employment agreement. That said, a breach doesn't mean you can respond in whatever way feels appropriate in the moment.
In the first instance, you can have a discussion with the employee and attempt to negotiate the notice period. In many cases, a practical conversation will result in an agreed outcome, such as the employee working part of their notice, assisting with a handover, or agreeing to an earlier end date by mutual consent. This approach often minimises disruption and reduces the risk of the situation escalating unnecessarily.
You should also consider whether the employee has a valid reason for being unable to work their notice period. There are situations where personal circumstances, health issues, or other legitimate factors make continuing work difficult or unreasonable. While this does not automatically remove the notice obligation, it is something you are expected to consider and respond to in good faith.
What you cannot do is unilaterally deduct money from the employee’s final pay as a penalty for not working notice. Employers must pay for all hours worked up to the last day of employment, as well as any outstanding entitlements such as accrued annual leave. Deductions from wages can only be made where they are lawful and where the employee has given clear consent. That consent should be obtained in writing and should relate specifically to the deduction being made. Without the employee’s agreement, deductions from final pay should not be made.
You may be able to withhold payment for notice that was not worked, but this does not allow you to retrospectively withhold pay already earned or to impose a financial penalty. Any action taken in this space needs to be carefully considered to ensure it complies with the Wages Protection Act and your good faith obligations.
Some employers ask whether they can recover losses caused by an employee not working their notice. While this is technically possible in limited circumstances, it is uncommon and often impractical. You would need to show actual, direct financial loss caused by the failure to work notice, rather than general inconvenience or disruption. In many cases, pursuing recovery is not commercially sensible.
It is also important to avoid actions that can create further risk. You should not delay or withhold final pay out of frustration, make threats that are not legally enforceable, or respond in a way that could be seen as punitive or retaliatory. These responses often create risk of a personal grievance been raised.
In most situations, the most appropriate course of action is to confirm the employee’s final day in writing, record that notice was not worked as required, and ensure final pay is calculated and paid correctly and on time. This protects your position while demonstrating professionalism and compliance.
If you are unsure how to respond, or the situation feels more complex, getting advice early can prevent missteps. At proHR, we support employers to manage resignations and exits in a way that is calm, compliant, and commercially sensible, even when things do not go to plan.
