Recovery of money owed on termination of employment

[RebeccaS]

Help please.

I have an employee who handed in his resignation but the 4 days later left and didn't return. It states in his contract that he was to give 1 months notice in writing, so he has fallen very short on this.

We pay employees on a monthly basis (2wks in arrears and 2wks in advance). Unfortunately, when we received his resignation the pays had already been processed and he was paid for the entire month.

Are we legally able to make the employee return this money to the company, as he owes us 3 and a bit weeks in lieu of notice and he only had approx 57hrs of annual leave owing to him at the time of termination?

Your help in this matter is greatly appreciated.

Thanks

[Moz]

I will preface this by saying that this is only my understanding and you should probably seek specialist advice.

Assuming he abandoned his job 4 days after you paid him two weeks in advance, that means he has been overpaid by 6 days. However, his accrued leave is more than 6 days, so technically you probably still owe him 1 - 2 day's pay (depending on how many hours constitutes a day's leave).

I suspect this was roughly calculated by the employee.

Unfortunately I believe your only recourse regarding him not working out his notice period is to sue him for breach of contract and/or take out an injunction to prevent him from starting his new job until his notice period has ended, although you would then have to pay him for that period.

In most cases such legal action is not worth it. The only times I know of this type of legal action being taken is when the employee has a long notice period (say 3 months) and is in a commercially sensitive job, such as investment banking, where there is probably a "gardening leave" clause (you are paid to stay at home and not work for anyone else).