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Is three months' notice a week longer than 12 weeks in the context of calculating statutory notice pay?

12 January 2021

Surprisingly, the position is not entirely clear. Section 87(4) provides as follows:

"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)."

On the face of it, where the notice to be given is three months, the conversion into weeks will depend on precisely when notice is given. For example, if three months' notice were given on 1 February then this would equate to 12 weeks' notice. If three months' notice were given on 1 July then this would equate to 13 weeks. In the former case section 87(4) would arguably not be triggered and in the latter case it would be. 

There is some case law on this point which suggests three months equates to 13 weeks regardless of when it is given (and so section 87(4) is triggered), although it does not seem to have been fully considered. In Scotts Company (UK) Ltd v Budd UKEAT/823/01, a case before the EAT concerning the application of section 87(4) to a three month notice period, both parties accepted that 13 weeks and three months should be treated as the same thing. In fact, only 12 weeks and two days' notice was given. This is perhaps due to the timing of the three month notice period, falling partly in shorter months, but the tribunal considered the fact the notice period was less than 13 weeks was "presumably as a result of some error of calculation" (paragraph 15). The respondent's representative did not pursue that point before the EAT and the parties and the EAT appear to have proceeded on the basis that three months necessarily equates to 13 weeks.

We think that there must be scope to argue that consideration should be given to what the three month notice period means in the context it is given, rather than assuming it will always be 13 weeks and therefore one week more than statutory, but a party arguing that point will need to overcome the hurdle of the above EAT judgment.

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