(1)If an employer gives notice to terminate the contract of employment of a person who has been continuously employed for one month or more, the provisions of sections 88 to 91 have effect as respects the liability of the employer for the period of notice required by section 86(1).
(2)If an employee who has been continuously employed for one month or more gives notice to terminate his contract of employment, the provisions of sections 88 to 91 have effect as respects the liability of the employer for the period of notice required by section 86(2).
(3) In sections 88 to 91 “period of notice” means—
(a)where notice is given by an employer, the period of notice required by section 86(1), and
(b)where notice is given by an employee, the period of notice required by section 86(2).
(4)This section does not apply in relation to a notice given by the employer or the employee if the notice to be given by the employer to terminate the contract must be at least one week more than the notice required by section 86(1).
Cases considering section 87 4
[2013] UKEAT 0430_12_0210 · 2 October 2013Disapplies
The court treated the notice-pay consequences as those flowing from the employer’s failure to give notice, rather than from an employee’s notice of resignation.
The employee-notice provision was inapplicable because the constructive-dismissal damages flowed from the employer’s repudiation and failure to give notice.
[2013] UKEAT 0391_12_0703 · 7 March 2013
The court held that the dismissal fell within section 87(1), so that the notice-payment provisions applied, subject to the section 87(4) exclusion. Their operation remained confined to the section 86(1) period (see paragraph beginning “However, Mr Rees' second ground of appeal is more firmly based”).
Section 87(4) would disapply the statutory notice-payment scheme if the contractual notice period were at least one week longer than the statutory minimum. It could not be applied because there was no tribunal finding as to the contractual notice term, whether express or implied (see paragraphs beginning “There is, however, a difficulty” and “However, Mr Rees' second ground of appeal is more firmly based”).
[2006] EWCA Civ 1778 · 21 December 2006Disapplies
Section 87(4) excluded section 88 where the contractual notice period exceeded the statutory minimum by at least one week. The EAT therefore treated the contractual SSP provision as governing wrongful-dismissal damages. (see para [6])
What each judgment says about section 87 is in the case-law panel in the full Act.