Notice period and Notice pay

[nandaandm]

Bit of a long one.
My Son works for a construction company and has done for 16 months. Last Friday he handed in the required 1 weeks notice. Mostly in this industry, no one ever sticks around after handing their notice in, but I advised him to do it by the book. He was brought into work on the Monday, and then the Monday night received a text to say that he was laid off the following day. In the evening of the following day, he received a text to say he would be laid off again and for the rest of the week.
Due to the nature of the work, there are occasionally lay offs, and the company pay the HMRC stated amount off £28.00 per day for 5 days in any 13 weeks. As he has been laid off this year already, he has had his 5 days entitlement.
I have spoken to ACAS and given them all the above information and they informed me that he would be entitled to the full weeks pay as he was willing to work. I explained about the lay off situation, they said that did not affect this.
So... I approach somebody who I work with who has a legal background. I explain the situation and tell him the advice I have received and he dismisses it. Says it incorrect and that the only way he would be entitled to notice pay would be if the Employer had given notice to my Son but not the other way around. Essentially he is only entitles to pay for the days he has worked. I then contact ACAS again and explain that I have previously spoken to them but I've been told the information supplied is incorrect. We go through the whole situation again and they again give me the same advice. I want to make sure that we have all the correct information before he approaches the employer but I don't know who is right. CAN ANYONE HELP AND EXPLAIN IT SO THAT I CAN RELAY IT BACK TO MY SON SO THAT HE HAS AN UNDERSTANDING WHEN SPEAKING TO THEM?

It boils down to whether they are entitled to lay him off or not. What does his contract say about lay-offs and/or working hours?

This is one of those strange quirks in law. ACAS very much work on a scripted basis without people who are legally qualified so I would always suggest treating their guidance with a pinch of salt. This area is likely beyond their remit.

Anyway. The law in this area is either governed by statute (written laws) or contract depending on the notice requirements under both. If your sons notice period is exactly one week per complete year of service (if the EMPLOYER were to serve notice) he is working under a statutory entitlement so the statutory notice rights apply - ie, if he’s ready, willing and able to work, no lay off provision applies during the notice period so he’s entitled to full pay (even if it was him, and not his employer, giving notice).

If his notice period is more than the statutory minimum, it’s governed by contract and therefore he would not be entitled to pay.

As your son has worked for the company for 16 months, he needs to check his contract - if the notice clause allows the employer to give one weeks notice, he’s entitled to pay. If it’s more than that, he isn’t entitled to pay.

It’s governed by S88(1)(A) Employment Rights Act 1996 in case it’s disputed.