Can a notice to terminate employment be withdrawn?

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An employee’s refusal to agree to treat the notice as ineffective and to continue employment may have serious consequences.

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Occasionally, an employer may come across circumstances when previously served notice to terminate employment, for whatever reason, may need to be withdrawn before termination becomes effective.

In the eyes of law, this cannot be done. Once an employer serves a notice to terminate employment, it cannot be withdrawn or cancelled.

An employee given notice may agree to return to work. In this case, the continuity of employment will not be interrupted.  Equally, the employee will be entitled to insist on employment termination and payment of all sums due.

Despite this, the employee’s refusal to agree to treat the notice as ineffective and to continue employment may have serious consequences.

In a redundancy situation, the employer has a duty to search for alternative employment, including within the notice period up until the date when the redundancy takes effect. If the employee, despite the notice, is offered the employment back, or alternative employment on conditions substantially similar to the redundant job (suitable alternative employment), this employee may lose entitlement to statutory redundancy pay and no redundancy payment will be due.

Also, when an aggrieved employee refuses an offer of job reinstatement and then brings a claim for unfair dismissal, then the employee will be at risk of losing the compensatory award element, even if the claim for unfair dismissal is successful. The compensatory element reflects the employee’s loss of earning as a result of the dismissal. If the employee is offered the job back and refuses, then the earnings will be lost not because of the dismissal but because of their refusal of the reinstatement, and the employee cannot ask to be compensated for the loss created by their refusal.

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Kiril MoskovchukLegal AdvisorRead More by this author

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