Employment Rights Act 1996, section 87

Rights of employee in period of notice

Part IX Termination of employment

(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).

Definitions used in section 87 5

employer

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

Defined in s.230(4) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
contract of employment

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

Defined in s.230(2) · see it in the full Act
employed

and “employed” shall be construed accordingly.

Defined in s.230(5) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
employee

(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

Defined in s.230(1) · see it in the full Act
week

“week”—

(a)

in Chapter I of this Part means a week ending with Saturday, and

(b)

otherwise, except in sections 27C, 75F, 75H, 80A, 80B , 80EA , 80EF , 80J and 86 and paragraph 11 of Schedule A1 , means, in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday, a week ending with that other day and, in relation to any other employee, a week ending with Saturday.

Defined in s.235(1) · see it in the full Act

Cases considering section 87 4

Croft Vets Ltd & Ors v Butcher

[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.

Milson v Hope

[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”).

Burlo v Langley & Anor

[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.