It can be difficult to determine reasonable notice periods accurately before a dispute goes to court
Although reasonable notice periods are frequently litigated, it is often difficult to determine them accurately before a dispute goes to court. Because the specifics of each situation can vary significantly, following internal rules of thumb and averaged results from different cases can be an imprecise and imprudent practice.
Generally speaking, there are four factors – known as the “Bardal factors” – that can affect the length of reasonable notice:
- The character of the employment
- The length of service
- The age of the employee
- Availability of similar employment – having regard to the experience, training and qualifications of the employee
While the Bardal factors have for some time been accepted as the industry standard of calculating the length of reasonable notice, new technology is uncovering other, important factors. After applying machine learning to hundreds of past reasonable notice cases through its HR Foresight technology, Blue J Legal discovered several other factors that can affect the amount of reasonable notice, including:
- Whether the employee was induced to leave their previous job to join the employer
- Whether the employee relocated solely to work for the employer
- Whether the employee suffers from medical issues
- Whether the employee had a senior role
- Whether the employee’s position was unique and highly specialized
- The employee’s documented performance
- Length of service in their occupation or industry, including time at the hirer
- Years of formal post-secondary education
- Whether the employer terminated the employee due to financial difficulty
“This platform offers a highly accurate way to determine reasonable notice periods,” said Michael Rodgers, Director of Marketing, Blue J Legal, referring to HR Foresight’s Reasonable Notice tool. “On average, the software’s predictions are within 8% of the actual notice period awarded in a case.”
Rodgers explained how the tool works. Firstly, it asks the HR professional a set of questions about their particular situation. Once the user completes that questionnaire, the software uses machine learning to compare the information provided by the user to the database that consists entirely of cases decided by the court. Then, the tool provides a prediction for what would be considered a reasonable notice for that particular scenario the user has presented, if it were to go to court.
“Artificial intelligence is really something that’s going to augment our professionals’ capabilities rather than replace them, which is a common concern,” Rodgers said. “There’s no way that a tool like HR Foresight could replace an HR professional’s judgment – their own expertise is still invaluable in handling termination issues, like severance packages and determining reasonable notice periods. But this type of technology can help them reach actionable results faster and more accurately than before.”
In an attempt to bring clarity to the many grey areas surrounding severance, Blue J Legal will be hosting a free webinar on the topic on March 7 at 10 AM (ET). Benjamin Alarie, the company’s CEO, will be discussing recent developments in determining severance packages using artificial intelligence and how it’s changing the game for HR. He will also answer any questions that attendees have.
You can sign up for the webinar now.
