Should employees not work their notice to prevent that departing act of defiance?

By November 10, 2017News

Donald Trump’s Twitter account has been in the news recently for a different reason.  A departing employee of Twitter deleted Trump’s account before leaving the business.  It was down for only about 11 minutes as, of course, all the data was fully backed up.  Whilst there were media reports that people had called for the employee in question to be given the Nobel peace prize for his departing act of defiance, it also raises a number of issues.

Employment law does not act in a silo and there are often commercial decisions to be made.  However, the bigger issue is when an employee gives notice or you, as an employer, decide to terminate their employment.  Should they remain working in the business until their leaving date?

Firstly, it will of course depend on the circumstances.  An employee who is dismissed for gross misconduct will not return to work once that decision has been taken and may well have been suspended beforehand.  An employee who resigns to work elsewhere may remain in the business until their leaving date.  Much will depend on the role of the business, the employee’s role within it and what the parties agree as to the notice period.  An employee who is given notice for redundancy, for example, may be working their notice or may be given compassionate leave or time off to look for other roles so may not be in the business much. In these scenarios there are a number of different considerations.

The starting point is to look at the contract of employment.  This should contain details of what may happen when either party gives notice to the other.  It may provide for garden leave.  This is a period where the employee is asked to remain at home (i.e. in the garden) but remains an employee and is paid in full.  The employee cannot start work elsewhere but may be asked to refrain from contact with customers and staff or may be asked to undertake project or alternative work.

Another option which may be present in the contract of employment is the provision which will allow the employer to pay the employee in lieu of working notice (PILON).  A variety of options concerning this PILON are possible depending on the terms of the contract.  The employee may only have the contractual right to basic salary and no benefits, they may only be entitled to be paid in instalments and if it is in the contract it will be taxable.  Much will depend on the terms of the contract as failure to check this could result in a breach of contract claim by the employee.

Some employers may take the view that such a claim is a small risk versus the commercial risk of leaving the employee in situ or with full access to the systems.   It is in these type of scenarios that an employee could take steps that could damage the company or day to day operations that they would not have done had their employment come to an end.  An early and swift consideration of the options open to the business and the associated risks is necessary.  I have seen many examples of questionable employee conduct at the last minute from deletion of documents on the system to documents copied to USB sticks, but never before the deletion of the Twitter account for the President of the United States!

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