Resigned but Still in the Game: Can You Get Promoted During Your Notice Period?

If someone has resigned and is serving a three-month notice period, will the person be eligible for a promotion if promotion proceedings take place for their batch during this period? Are there any court rulings regarding this matter?

If any employee submits a resignation and is working during the notice period, that person is eligible for a promotion. This is because if the person's competencies and performance have been good in the past, we can consider giving them a promotion. Sometimes, offering a promotion to the employee may result in their satisfaction and encourage them to stay with the organization.

Thank you.

Eligibility for Promotion During Notice Period

Promotion pertains to the previous year's performance of the employee. If the employer wishes, they can issue a promotion with revised pay for employees who have submitted their resignation. One option is for the employee to change their mind and continue with the job, or they can quit and negotiate a revised salary with the new organization. It is not a problem to receive their promotion and increment.

If an employer does not promote the resigned employee but promotes his juniors, can he resort to legal remedy? Are there any court rulings in this regard?

If the employee is on a notice period, then he/she cannot ask for a promotion as a matter of right. There is no compulsion on the company to promote an employee. Most likely, by the time the case is heard, the employee's notice period would be over anyway. (Most companies do not give performance incentives to people on notice; promotion would clearly be out of the question.)

A promotion usually means a change in responsibilities. If the employee has performed well in the past, it still does not guarantee that he/she will perform the new responsibilities satisfactorily. I know of numerous cases where people have performed excellently at the junior level and failed to deliver after they got a promotion.

Normally, no company would promote a person who is serving notice. Promotion is not a reward for excellent performance in the past; an employee has to earn a promotion by giving very strong indications that he/she is ready to handle higher responsibilities. It is also an incentive for the employee to continue serving in the company.

Answering Your Questions

1) "If someone has resigned and is serving a three-month notice period, then if there are promotion proceedings taking place for his batch, will the person who has resigned be eligible for promotion?" - NO.

2) If the employer does not promote the resigned employee but promotes his juniors, can he resort to legal remedy? Any court ruling in this regard. - I don’t know about legal rulings, but I am sure the employee’s resignation (I’m assuming it was voluntary resignation by the employee) is a very strong case for the refusal of promotion.

If I were the employer, I would not promote an employee who was serving notice. At the very least, I would ask the employee to withdraw the resignation, give a commitment to serve with the company for at least 18 months, and then I would consider his/her case for promotion.

Hope this helps.

Best Regards,

Ritesh Shah

I think to actually answer this question, I need to go back to some basic fundamentals that seem to be missing in this discussion.

No organization has promotion proceedings. They have performance appraisals, and performance appraisals are always about how an employee has performed in the recent past over the specified period (if it is annual, then yearly, etc.). This appraisal then forms the basis of awarding incentives to an employee—rewards.

If the management feels the employee is now set to take on more responsibility, then he is promoted.

Please note: Promotion is purely a management decision, and no employee or law has any say in it unless it is proved that growth has been intentionally blocked (bias). Promotion is not guaranteed to each and every employee by any law or any organization, nor is it a commitment that has to be met. Promotion is definitely not purely performance-dependent but has other skills taken into account.

An employee is still an employee (even in the notice period) until the final settlement and exit formalities are done. Therefore, if the performance appraisal is done for the organization (read his team) during his notice period, then the employee's (the guy who has resigned) appraisal needs to be done as well. The incentive decided will be part of the final settlement. Not including his appraisal can be categorized as "bias," and legal action can be taken.

Companies bypass this by not doing the appraisal for his team/department while he is on the notice period. In reality, if the guy wants, he can ask for his incentives even after his departure since it is for the period which he has already served and performed. We don't do it because our legal system is highly taxing/complicated, and we don't have time to waste. If you are an organization that values your brand and every employee, even after leaving needs to be your ambassador (there are many that I know of), they still process your incentives (even on a pro-rata basis) and pay it to you. But that's their policy, but a good one at that!

Unlike Ritesh, I wouldn't stop his incentives because he might be leaving me; that doesn't mean he can't be of help to me. I can use the goodwill that I create by giving him the incentive and having him recommend his friends to join me... or maybe he himself at a later stage. It's a small marketplace, and I would rather have more well-wishers in them... 

Regards,
Navneet Chandra

Dear Navneet, Please don't misquote me.

Clarification on Incentives and Promotions

A) I never stated that an employee on notice should not receive "incentives." My observation is that most companies do not pay incentives to employees on notice.

B) I mentioned that I would not promote an employee on notice; however, I did not say that I would not provide incentives to them.

This discussion concerns promotions. My comments were specific to promotions. You are grouping promotions, incentives, and appraisals together, but each should be addressed separately. While inputs from one may impact the others, they should not be conflated for this discussion.

About Incentives:

1. Should an organization provide incentives to an employee on notice? My stance is YES; the employee deserves it.

2. Do most organizations actually offer incentives to employees on notice? In my experience, they do not. While I believe this is unfair as an HR professional, it is a common practice. Many organizations have clauses in their incentive policies regarding this.

About Promotions:

I have significant experience in retention discussions and promotions.

Should an employee on notice be promoted based on past performance? Not unless they withdraw their resignation. Most companies have promotion quotas, and I prefer to allocate them to employees who will remain with the organization. Promoting someone who will leave in 30-60 days would waste the quota and deprive a deserving candidate of an opportunity.

I hope this clarifies my position. Please read my posts carefully and avoid misquoting me.

Regards,
Ritesh Shah

Apologies if I have misunderstood and misquoted. Not intentional, I can assure you, and I stand corrected.  But as I said, to each his own... So while you have, I presume, successfully used promotion as a retention tool to halt a person's departure, I have generally avoided doing that. You can try and fix a broken part of anything, but to get it to the original strength or form will always be impossible. This promotion would be treated like an attempt to halt him there by giving an inorganic boost to his ego and feeling of indispensability. The same promotion given to a regular person or the next in line could be the trigger for a better professional than the person going out.

But that's my opinion. Apologies again.

Cheers,
Navneet Chandra

I appreciate your views, but in the present case, the management has promoted the particular batch, taking the years 2007-08, 2008-09, and 2009-10 into consideration for the promotion. They have even included his name in the promotion proceedings but withheld the promotion order of the person who has resigned. Therefore, the question of a wasted seat or giving the promotion to the next person on the list does not arise. In this case, will it be considered discrimination?

Management has full authority to withhold promotions depending on the situation. In this case, since the employee is in the notice period, no discrimination case can be justified. However, a law professional might disagree with this opinion... :-)

Cheers,
Navneet Chandra

Ritesh, I appreciate your views, but in the present case, the management has promoted the particular batch taking the years (2007-08, 2008-09, and 2009-10) into consideration for the promotion and even has included his name in promotion proceedings but withheld the promotion order of the person who has resigned. So here the question of a wasted seat or giving promotion to the next person in the list doesn't arise. So, in this case, will it be a case of discrimination?

It will not be a case of discrimination at all. There is no compulsion (legal or otherwise) on the Company to give a promotion to the employee; it is totally at their discretion. And on top of it, the employee's resignation has weakened his case further. Normally, no one will switch jobs till they get a good offer or a promotion or both. I may be wrong, but I assume the employee would have negotiated good terms before resigning, and his Manager/HR would have tried to retain him, but he still chose to go ahead with the resignation.

I feel this is just a matter of bad luck or wrong timing that has caused this issue to come up. What if the management would have announced the promotions one day after the employee left? Would the employee still ask for the promotion? My suggestion is that the employee should take this episode with a pinch of salt and move on. If he's really good at his work, rewards will follow sooner or later.

Regards,
Ritesh

You are not correct in saying that promotion is not a matter of right. The Supreme Court has already ruled that "The right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 (Equality of opportunity in the matter of public employment) of the Constitution," way back in 2010 itself. However, the legal process and overall legal system in India are so taxing that anybody thinks numerous times before he/she resorts to that.

As far as relevance is concerned—as Navneet said—to each his own. I will never exclude anybody on notice period from incentive/promotion/reward because the moment he/she becomes eligible for these, that means they are performers. I will try my level best to retain my performers till the last point of time, and I will also be zealously guarding my brand. But, having said that, your opinion is not wrong either. This is going to differ from person to person and organization to organization.

We already had a healthy discussion on the same. Please look for the thread.

I think Article 16 is meant for people in public/government services where promotions happen in a time-bound manner rather than performance-based. I'm not too sure if this would be applicable to the private sector. Can any of our friends here, good in legal systems, please shed more light on this? It will be great to have clarity on this important issue. Cheers, Navneet

It makes no sense to promote someone who has resigned from the services. Moreover, promotion refers to an increase in their cadre and responsibilities. When he resigned from his services, what good happens to the company in promoting him?

Regards

I appreciate you adding a new perspective to this discussion. I would like to add the following:

1. As pointed out by Navneet, Article 16 may be applicable in government employment, not in the private sector. It would be really great if someone with good legal knowledge could confirm this.

2. In this particular case, a batch of employees is getting a promotion. I doubt any real assessment for eligibility would have been done since the whole batch is getting the promotion. Such batch-wise promotions are common up to a certain level in IT companies. The reason behind doing this is to prevent attrition in the 1-3 years tenure category. Attrition in this tenure category puts a huge strain on cost & effort for replacement and training and also severely hampers delivery due to attrition of an employee who has just become independent in his work.

3. I agree with you that all companies must put in their best efforts to retain their performers - the operative word here is "Performers." Since an entire batch is getting a promotion, I doubt any real assessment of their performance has taken place. They are simply getting a promotion because the company cannot afford to lose them at this point of their tenure.

4. I agree that incentives and awards have to be given to employees for past performance, even if they are on notice. I have done this in my past employments; we had even sent certificates to ex-employees for the good work they did while they were working with the company.

5. Our role as HR is not to favor any side (employer or employee). We have to ensure that neither party takes undue advantage of the other. Hence, I firmly believe that a promotion should not be given to a person on notice. If the person is willing to withdraw his/her resignation and can give an assurance of sticking with the company, then his/her case can be considered for a promotion.

6. If any company starts giving in to demands for promotion, they will become 'top-heavy' in a matter of years. This would be an absolute disaster because:

a) Even average performers would start demanding promotions.

b) Once employees get a certain designation, they expect a certain level of pay along with it - will companies be able to afford such a system?

c) If the company gives promotions but pays lower than the market, then they are making their employees "potential targets" for poaching by other companies.

7. Companies have to devise policies that can be sustained for years together. If matters like promotion are taken lightly and liberally, then the company will soon find itself in a self-created mess. I have witnessed some cases where companies make big promises when times are good and cannot fulfill them when times are bad.

Regards,
Ritesh Shah

Dear Ritesh,

Navneet's and your doubt is valid. In India, there are mainly three types of employees: Government employees, employees in government-controlled corporate bodies known as Public Sector Undertakings (PSUs), and private sector employees.

The rules and regulations governing the employment of government employees stem from the Constitution of India.

Public sector employees are governed by their own service regulations, which either have statutory force, in the case of statutory corporations, or are based on statutory orders.

Private sector employees, excluding workmen, are governed by respective contracts of employment, and hence Article 16 has no direct applicability.

However, you need to understand that Article 16 has wide implications, and if someone is ready to take up the cudgels, one can pursue this. There are many factors in public employment which serve as a guiding light for private employment, such as DA, Pay Commissions, etc.

The question here is "Denial of equality of opportunity," which assumes that everything else is equal. Assessment always takes place before promotion, real/unreal, and it is independent of the fact whether the whole batch or a single individual is being promoted.

I do not agree that a company will give a promotion simply because of the attrition factor. In private employment, performers are always given all kinds of perks/recognition/rewards, etc., and non-performers are always let go.

However, I agree that the operative word remains "Performance."

Great! Hats off to you for doing that.

Obviously, promotion for a person (Performer) is nothing but a retention exercise. Exit today has undergone a sea change. You want that person to come back and act as the brand ambassador of your company. Promotion during the notice period is the price that you pay for it.

The question here is that your employee has qualified for the performance by putting in hard work and exceeding targets/expectations. You can never become top-heavy by not letting go of your performers.

However, you are correct in saying that some people may use it for personal gains. But, there has to be a system in the company for separating chaff from wheat. Keep the wheat, let go of chaff.

Promotion is always a serious matter. A light matter does not elicit so much response.

Case Study: Promotion in a Central Public Sector Unit

This was a case related to a Central Public Sector Unit. The promotion in this case pertained to a time-bound and vacancy-based one, subject to receiving a 'Good' rating in annual appraisals in the last three fiscal years. These two criteria were fulfilled.

The only downside in this case was a rule of the company stating, "After getting a promotion, no application for outside employment will be forwarded for the next two years."

The issue at hand was to decide whether the promotion should have been given, as the resignation had been submitted before the "Departmental Promotion Committee" proceedings were initiated.

It may be noted that in a similar case in another Power Central PSU, the promotion was granted even after the executive had joined another company.