How Do You Handle Unauthorised Absence?

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.

Assumed Resignations

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.

Disciplinary Action

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.

Unauthorised Holidays

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.

Can Santa Get the Sack?

Santa

Can Santa get the sack?

Christmas is coming, the goose is getting fat … but so is Santa! He’s now too big to fit down the chimney; the elves think they have man flu; and Rudolf says the roads are blocked with snow so he can’t get to work!

You might think that Christmas runs smoothly at the North Pole – after all, they have all year to plan it. However, this year there are a few problems for the Head Reindeer (HR) department to sort out.

Father Christmas is too big to fit down the chimney. All year Santa has been relaxing at the North Pole and as a result, his girth has expanded somewhat. The Head Reindeer is worried that he won’t be able to do his job properly – after all, he is supposed to climb down chimneys in order to deliver presents. Can he get the sack for not being able to carry out the work in his job description? If Santa is morbidly obese and can’t carry out his daily tasks, he could be classed as disabled. This means that sacking him because of his girth may be discrimination – something the Head Reindeer would like to avoid!

The elves think they have ‘man flu’. They’re sneezing and coughing and their noses are running, so they’re really like to stay in bed – especially during December when work gets really busy. Are they allowed to take time off sick, when Father Christmas thinks they just have colds? Staff taking time off for sickness usually increases over the winter months, so the Head Reindeer will need to speak to each of the elves and find out what’s actually wrong with them and make sure they have the right evidence to support the reasons for their absence. Keeping in contact with sick staff is always a good idea. After all, how can Christmas carry on without the elves?

Rudolf says the roads are blocked with snow. He says he can’t get to the office because of the weather conditions. He can’t really work from home, although for some staff, it’s worth setting up remote access, so that they can still work, even if they’re not in the office. The Head Reindeer needs to make sure that the Staff Handbook is up to date, to cover issues like bad weather. And he needs to find out how else to get Rudolf to work, if there is snow on the road, or Christmas might have to be cancelled.

With a little bit of forward planning (and perhaps some advice from an expert) the Head Reindeer (HR) manager will be able to make sure that everything goes to plan for a great Christmas. At least he can let all the elves take time off together, once the festive period is over!

Our Guide to Employment Law Changes – 1 October 2014

On 23 October we’ll running our next Employment Law Update workshop. This half day session is aimed at business owners and managers who need to keep up to speed with the changes, to make sure they stay legal. We’ll go through all the new changes and give you the opportunity to find out how they might affect your business.

There are still some places available, so to join us at Hennerton Golf Club in Wargrave, Berkshire for just £15 +VAT, click here.

Here are a few of the changes we’ll be looking at.

Antenatal rights for fathers and partners

Working fathers will have the choice to take unpaid time off to attend up to two antenatal appointments with a pregnant partner. These rights will be available for employees who are in “qualifying relationships”, which means they:

  • are the expected child’s father
  • are the pregnant woman’s husband or civil partner
  • live with the woman in an enduring family relationship and are not a relative
  • are one of a same-sex couple who is to be treated as the child’s parent under the assisted reproduction provisions
  • are the potential applicant for a parental order in relation to a child who is expected to be born to a surrogate mother.

From 1 October both employees are permitted to take time off to attend the same appointment. However you may refuse to grant an employee time off where it is “reasonable” to do so. But you must tread carefully as employees can bring a tribunal claim against you for unreasonably refusing time off. You should adopt a clear policy of how such requests will be dealt with and the parameters for refusal.

Employment tribunals must order equal pay audits

Greater sanctions are to come into force to ensure that employers are carrying out equal pay audits. As part of a new tougher regime, employers who are found in breach of equal pay legislation can be ordered by the Employment Tribunals to carry out an equal pay audit and make the results of that audit public. If the Tribunal determines that you have unreasonably failed to comply with its obligations, it can impose a fine of up to £5,000 at each hearing, in order to address your non-compliance.

Reservists better protected against unfair dismissal

To encourage more new recruits to sign up as a reservist of the armed forces, the Government is making signing up more attractive to people who worry that enlisting might cause problems with their job and career. From 1 October 2014, the statutory qualifying period for unfair dismissal will be removed in the case of a dismissal connected with an employee’s membership of the Reserve Forces. However, reservists will still have to prove that it was unfair to dismiss them because of their absences from work – they will not be treated as automatically unfairly dismissed.

The changes will apply to employees whose effective date of termination falls after 1 October 2014. Prior to these changes, reservists were at a considerable disadvantage when pursuing a claim for unfair dismissal as a period of call-up could not count towards the two year qualifying period needed to bring a claim.

The government is also reducing the financial burden on reservists’ employers.Small and medium-sized employers will now be able to claim £500 per month (pro-rated for part-months and part-time employees working fewer than 35 hours per week) from the Ministry of Defence during periods when a reservist employee is absent on military service.  Employers will also be able to claim up to £110 a day for additional salary costs incurred in providing cover for the absent reservist.

Increase in national minimum wage

Following the recommendations of the Low Pay Commission the Government has implemented the following increases to the national minimum wage which take effect from 1 October 2014: the standard rate for those aged 21 and above will increase from £6.31 to £6.50 an hour; the rate for those aged 18-20 will increase from £5.03 to £5.13 an hour; and the rate for those above the compulsory school but aged under 18 will increase from £3.72 to £3.79 an hour.

There’s a lot more happening, so to keep ahead of the changes and to find out more about these ones, join us on our workshop on 23 October 2014.

 

Employment Tribunals Have Changed – What Do You Need to Know?

From April 2011 to March 2012 there were a total of 186,300 tribunal cases is the UK. The cost to employers was an average of £3900; the cost to the taxpayer was £1900 for each case. Of this total, 46,300 cases were due to unfair dismissal. 24% of the cases were withdrawn, 42% were settled via Acas, 8% were successful following hearing and 10% unsuccessful following hearing.

Since July 2013 a number of changes have been made including:

Cap on unfair dismissal – there is now a basic award which is based on redundancy; and the compensatory award is now capped at £74,200 or one year’s earnings.

Employment tribunal fees – fees are now charged for issuing and hearing tribunal claims and for various applications made during tribunal proceedings. Level 1 fees for simpler claims are £160 for issue and £230 for hearing. Level 2 fees for more complex claims including unfair dismissal and discrimination are £250 for issue and £950 for hearing.

Early sift stage – during this stage, the pleadings will be reviewed by a judge soon after the Tribunal claim form has been received, with claims or responses being struck out if the judge considers there is no reasonable prospect of success.

In addition, Acas is making pre-conciliation changes from early 2014 and financial penalties are being introduced for employers from 6 April 2014.

So should you settle or should you fight? If this all sounds too complicated for you, or you have any specific questions about changes to employment law, don’t go through it alone! Please get in touch by calling 0118 940 3032 or by emailing sueferguson@optionshr.co.uk.