NOTICE PERIOD – when does it begin to run, when does it not run, and what rights does an employee have during the notice period?
The concept of a notice period is generally well known. Most people are aware that such a period exists and that, as a rule, it must be worked out. However, when faced with the need to determine precisely what rights and obligations apply during the notice period, or when the notice period begins to run, when it ends, and similar issues, many people are unsure of the exact answer and require legal advice in this regard.
The notice period applies in cases of ordinary termination of an employment contract. In the case of extraordinary termination of an employment contract, there is no notice period.
The duration of the notice period may be agreed between the employee and the employer in the employment contract or may be prescribed by law or another regulation, a collective agreement or the employer’s work rules.
The Labour Act determines the duration of the notice period based on the length of the employee’s continuous employment with the same employer. The minimum notice period is therefore:
- one week in the case of termination due to failure to meet the requirements during the probationary period;
- two weeks in the case of ordinary termination if the employee has been continuously employed by the same employer for less than one year;
- one month in the case of ordinary termination if the employee has been continuously employed by the same employer for one year;
- one month and two weeks in the case of ordinary termination if the employee has been continuously employed by the same employer for two years;
- two months in the case of ordinary termination if the employee has been continuously employed by the same employer for five years;
- two months and two weeks in the case of ordinary termination if the employee has been continuously employed by the same employer for ten years;
- three months in the case of ordinary termination if the employee has been continuously employed by the same employer for twenty years;
- in the case of an employee who has been continuously employed by the same employer for twenty years, the notice period is extended by two weeks if the employee has reached the age of 50, and by one month if the employee has reached the age of 55.
However, if the employee’s employment contract is terminated due to a breach of an employment obligation, the notice period is reduced to half of the statutory period.
It is also important to note that where the employee terminates the employment contract, the notice period may not exceed one month if the employee has a particularly important reason for doing so. Whether a particularly important reason exists must be assessed on a case-by-case basis. Such a reason may, for example, be relocation to another city or taking up other employment.
The employment contract or a collective agreement may also provide for a shorter notice period where the termination is given by the employee.
When does the notice period begin to run?
With regard to the commencement of the notice period, the Labour Act provides that the notice period begins to run on the day the notice of termination of the employment contract is served. It must therefore be possible to prove that the termination decision was served and on which date the service took place, so that the notice period can be properly calculated.
However, if the employee is temporarily incapacitated for work at the time the termination decision is served (i.e. is on sick leave), the notice period begins to run only on the day the employee’s temporary incapacity for work ends. In practice, this generally means the day on which the employee returns to work.
When does the notice period not run?
The notice period does not run during the following periods:
- during temporary incapacity for work;
- during pregnancy;
- during maternity, parental, adoption or paternity leave, as well as leave which, in terms of its content and manner of use, is equivalent to the right to paternity leave; while working half of full-time hours; while working half of full-time hours for the purpose of increased care for a child; during leave for a - pregnant employee; leave for an employee who has given birth or is breastfeeding a child; as well as during leave or work at half of full-time hours for the care and support of a child with severe developmental difficulties, in accordance with the regulations governing maternity and parental benefits;
- during temporary incapacity for work due to treatment or recovery from an occupational injury or occupational disease;
- during the performance of citizens’ duties and exercise of their rights in the field of national defence.
This means that if any of the above circumstances arises, the notice period is suspended and continues to run only once the circumstance preventing it from running has ceased.
When does the notice period continue to run despite the employee’s temporary incapacity for work?
If the employee is temporarily incapacitated for work, but the notice of termination was served before the incapacity for work arose, and the employer has released the employee from the obligation to work, the notice period continues to run even during the employee’s temporary incapacity for work.
Likewise, if the running of the notice period has been suspended due to the temporary incapacity for work of an employee whom the employer has not released from the obligation to work, the employment relationship ends no later than six months from the date on which the notice period began to run.
This means that if an employee is on long-term sick leave, the notice period will expire at the latest upon the expiry of six months from the date on which it began to run, regardless of the fact that the employee was temporarily incapacitated for work during that period.
What rights does an employee have during the notice period?
During the notice period, the employee is generally entitled to salary and all other rights arising from the employment relationship. If the employer has released the employee from the obligation to work during the notice period, the employee is nevertheless entitled to remuneration and all other rights that he or she would have been entitled to had they continued working.
In addition, during the notice period, the employee has the right to be absent from work for at least four hours per week while continuing to receive salary.
Who is not entitled to a notice period?
An employee who, at the time of termination of the employment contract, has reached the age of 65 and has 15 years of pensionable service is not entitled to a notice period.