The employer should be aware that, where it makes a payment in lieu of notice and there is no contractual right to do so, there is a risk that it may not be entitled to enforce any restrictive covenants that are contained in the Employee’s contract of employment.
Please also note that in most circumstances it is unlawful for an employer to deduct wages from an employee unless the employee has given their written consent to this in advance, or there is a relevant provision in their written contract of employment permitting this. The Employer can only deduct overpaid holiday pay on termination of employment if there is express provision for this in the written contract of employment or a provision which is contained in a “relevant agreement”.
This letter is designed to be sent after you have held at least one consultation meeting with the Employee prior to reaching the decision to dismiss.
This would generally be good practice (and would be our advice) even if the ACAS Code of Practice on Disciplinary and Grievance Procedures does not apply to redundancy dismissals and may be a contractual requirement.
See our factsheet: Dismissing short-serving employees for further details. If you choose to dispense with a meeting you will need to amend this letter accordingly. We would strongly advise that you still offer the employee the right of appeal.
Please note that it is no longer possible for notice to run alongside furlough (and to claim from the Coronavirus Job Retention Scheme in relation to notice pay).
This is the case regardless of the reason for termination of employment. Where an employee is on furlough, they will need to be taken off furlough for their notice period, where the employee is required to work out their notice period.