Occasionally you might find yourself faced with a situation where one of your employees is absent from work without explanation and without permission. They simply fail to turn up for work. The absence might be for just a day or two or – in the worst case – you might never see them again. What can you do about it? How should you handle unauthorised absence?
Contacting your Employee
The starting point is for you to try to make contact with you employee by telephone on the first day of unauthorised absence, to find out why they have failed to turn up for work. Logs of all attempts at contact should be kept, whether these are messages left on an answer phone or with relatives or flat mates, or whether there has simply been no answer when the employee’s telephone number is rung. Remember to call landlines as well as mobile numbers, if you have them.
If your attempts to contact your employee are unsuccessful, it is recommended that you contact the employee’s stated emergency contacts – usually parents or siblings, spouse/civil partner or partner.
If nothing has been heard from the employee by the second day of unauthorised absence, you should step up your attempts at contact, by writing to advise the employee that they have failed to attend work on the relevant dates and have not provided any reason for non-attendance. You should cite the previous attempts to contact the employee in your letter, and ask the employee to make contact with you by a set date, to confirm their position. Allowing a couple of days for contact should be sufficient. The employee should also be advised that unauthorised absence without good cause is a serious disciplinary offence, which may, depending on the circumstances, amount to potential gross misconduct.
Some employers state in their letter that the employee’s conduct in failing to attend work implies that they intend to, or have, resigned; if they fail to make contact by the stated deadline, it can be assumed that this is the case and appropriate action can be taken. Do note, however, that for a resignation to be implied by conduct, at the very least you must make enquiries and warn your employee of your intentions.
It is only in exceptional circumstances that resignation will be the proper inference to draw from an employee’s conduct. In most cases, the contract of employment does not end until you accept the employee’s breach of contract in failing to attend work, by actually dismissing them. This is because tribunals will generally hold that the withdrawal of labour and the failure to contact the employer are not of themselves enough for a resignation. Rather, the employee must have actually communicated an intention to resign to the employer.
Given that it is likely that a tribunal will hold that an assumed resignation is in fact a dismissal, as the employer, you should incorporate your normal disciplinary procedure into this process. This will involve writing to the employee to invite them to a meeting to discuss the unauthorised absence, setting out the possible consequences of this behaviour. Of course, if the employee has failed to reply to the unauthorised absence letters, it is highly likely that they will fail to turn up for the disciplinary meeting and will not provide any reason as to why they could not attend. This means that the meeting will probably go ahead in the employee’s absence and that they will then be notified of the outcome in writing and given a right of appeal.
In many cases, you’ll be able to make contact with your employee and they return to work. When this happens, you should promptly investigate and ask the employee for a proper explanation at a return to work interview. If there are no acceptable reasons for the absence, the matter should be treated as a conduct issue and dealt with in accordance with your disciplinary procedure. Even if the employee says that they were sick, they will need to explain why no contact was made with you, as required by your company sickness absence reporting procedure. An investigation might well turn up the fact that the sickness absence was not genuine, and there may still be a disciplinary case to answer.
Unauthorised leave can lead to a fair dismissal, especially where a prior warning makes the consequences of the absence quite clear and the absence is for longer than a day or so.
You may become aware in advance that an employee plans to take unauthorised holiday. This is most often connected with holiday requests that you legitimately turn down, but when the employee tells you that they are taking the time off anyway, because a holiday or flight has already been booked.
Where an employee has a holiday request turned down, you should write to them confirming the legal position. Even if you choose not to do this for all declined holiday requests, as a minimum, you should do it if you subsequently find out that an employee plans to take the time off work anyway. The employee may tell you this directly – often in a fit of temper – or you may hear it from another member of staff.
The letter to the employee should state that their holiday request for the relevant dates was declined and set out the reasons why. It should go on to say that, if the employee does still take the time off, not only will they not be paid for it but it will also constitute unauthorised absence. The letter should make it clear that unauthorised absence is a very serious disciplinary offence amounting to potential gross misconduct and that the employee will be at risk of summary dismissal on return from the holiday. You should finish by inviting the employee to reconsider their position in light of the possible consequences.
If the employee ignores the letter and goes on holiday, on their return you should invite them to a formal disciplinary hearing to discuss the matter. Don’t try to hold this meeting in the employee’s absence, given that you already know that they would be unable to attend. Instead, suspend the employee on the day that they return and set up the disciplinary hearing for a few days later. Assuming that a fair disciplinary procedure is followed and that you had legitimate reasons for turning down the employee’s annual leave request, a dismissal on these grounds is likely to be fair.
As with all disciplinary and dismissal issues, make sure that you have a proper process in place and that you follow it to the letter. If you don’t have a procedure for dealing with unauthorised absence or any other staff issues, get in touch and we’ll talk about how we can help you set up the processes that you need.
If you have any questions about how to handle unauthorised absence, contact me straight away by calling 0118 940 3032 or by clicking here to email me.