Sometimes an employee – or prospective employee – simply does not turn up for work or cannot be contacted. Natalie Painter of Blake Lapthorn’s employment team looks at the options available to employers when dealing with employees who have taken unauthorised absence.
Unauthorised absence: case law
Employee falsely accused of “planning” sickness absence was constructively dismissed
Next employee unfairly dismissed for refusal to work Christmas Eve shift
Employee’s failure to notify employer of absence did not amount to resignation
Postal worker “stabbed by a syringe” unfairly dismissed for taking one day’s “fraudulent” sick leave
Unauthorised absence example 1: no response to job offer
I’ve offered a job to a potential employee, but received no response. Can I withdraw the offer?
If the job offer has not been accepted, it can be formally retracted at any time because there is no contract. As a matter of good practice, your offer letter should state that the offer will lapse if not accepted by a certain date. To protect against potential claims, you need clear evidence of when and why a job offer was retracted to demonstrate that it had not been accepted and that its withdrawal was not discriminatory.
Unauthorised absence example 2: new starter does not turn up
An employee has accepted a job offer, but not arrived for their first day. What should I do?
First, try to contact the employee to discover why they have not turned up – there may be a good reason. Keep notes of your attempts at contact.
If there is a contract you will need to give notice to terminate it, but if the absence is unauthorised it is unlikely you will need to pay the notice period – except if the employee is sick. Again, document that the reason for dismissal is the employee’s unauthorised absence. A new starter may be able to bring a claim for automatically unfair dismissal if they can show the dismissal was, for example, discriminatory.
Unauthorised absence example 3: contact lost during long-term sick leave
I have been unable to contact an employee on long-term sick leave. What action can I take?
You can and should maintain appropriate contact with employees on long-term sick leave, without putting pressure on them to return.
Depending on their contract or your policy’s wording, if the employee has not followed company procedure to report sickness absence you may classify it as unauthorised and unpaid, and treat it as a conduct issue. Contact the employee to inform them that the company is considering taking disciplinary action.
When contacting an absent employee at any point, it is best practice to send a letter by recorded delivery so that you are able to track whether it has been signed for and by whom. If the letter is not signed for by the employee or is returned to you, make further enquiries in case the employee has moved without telling you, to show that you have made reasonable attempts to contact them. Do not assume the employee has resigned merely by their failure to inform you of their new address. In Zulhayir v JJ Food Service, the Employment Appeal Tribunal (EAT) held that such an employee could not be presumed to have “dismissed himself”. His failure to respond to the employer’s letters was a repudiation of his employment contract, but the employer still had to “accept” the repudiation by dismissing him.
If the employee still does not respond, you can convene a disciplinary hearing. This can be held in the employee’s absence if you know they have received sufficient notice of the hearing. Whether or not the employee’s failure to maintain contact while on sick leave justifies dismissal will depend on the circumstances.
Unauthorised absence example 4: failure to return from annual leave
My employee has not returned from planned annual leave. Can I dismiss them?
Potentially, yes – but you need to follow a fair procedure and give the employee the chance to explain their absence. Try to contact the employee through all avenues possible, including asking close colleagues or named next of kin. Follow up on telephone messages or letters to ensure that the employee has received them.
Ask the employee to get in touch by a specific date, failing which, disciplinary action will be considered, and explain that any unauthorised absences will be unpaid. If after reasonable investigation there is no adequate explanation – for example, sickness – invite the employee to a disciplinary hearing, explaining that this will be held in their absence if they do not make contact. Inform them whether or not dismissal for gross misconduct is a possibility. If you have followed the correct and fair procedure, and reasonably believe that the employee’s continued unauthorised absence constitutes gross misconduct, you should be entitled to dismiss.
Unauthorised absence example 5: employee disappears with company property
My employee has gone AWOL and taken company property. How can I get this back?
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Legal solutions include issuing civil court proceedings to retrieve company property, but this is costly and can cause reputational issues. Before considering such action, write to the employee to ask for the property to be returned. Try to resolve the matter through conciliatory routes first. Any enhanced payments on termination – perhaps those that are part of a settlement agreement – could be made conditional on the satisfactory return of company property.
Natalie Painter is a solicitor in the employment team at Blake Lapthorn, which has offices in Southampton, Portsmouth, Oxford and London.
