Unauthorised absence

legal updates

Resignation cannot just be by the employee’s withdrawal of the employee’s labour and their failure to communicate to you.

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At Lawgistics, we often receive calls in regards to unauthorised absence and how to tackle this.

An unauthorised absence is when an employee fails to arrive for work. Altough it may be less hassle to not deal with the matter, this will not help.

Do not assume the employee has resigned based on their conduct alone. If the employee has not provided their written or verbal resignation then they haven’t resigned.

Resignation cannot just be by the employee’s withdrawal of the employee’s labour and their failure to communicate to you. Silence will be insufficient. As such, the employee’s employment will not terminate until the breach of contract in failing to attend work has been accepted and the dismissal of the employee.

A dismissal of this kind could come under ‘some other substantial reason’ (SOSR), but a dismissal under SOSR would only be deemed to be fair in the circumstance that you have acted reasonably in treating the employees unauthorised absence as a sufficient reason for dismissing them and you followed a fair dismissal procedure. You will need to show you made sufficient attempts to contract the employee over a reasonable timeframe. Therefore, one phone call or one email will not be enough.

If an employee is absent without permission or explanation, telephone them on the first day of their unauthorised absence to find out what the situation is. If you are not able to get hold of them via phone, leave a voicemail if you can and if you have their personal email address also send an email requiring them to contact you urgently to confirm their whereabouts.

Remember to keep the messages courteous and polite as there may be a very good reason for the unauthorised absence.

Keep a note of the attempts to contact the employee including dates and times. If you efforts to contact the employee have been unsuccessful then the next step would be to contact their emergency contacts.

If you do not have one in place, then have a unauthorised policy. This will set out what is deemed as unauthorised and that it will be dealt with a disciplinary matter.

If the unauthorised absence runs into a second day, send a letter to the employee stating they’ve failed to report for work without providing any explanation for the absence and again request them to contact you urgently. In the letter ask the employee to confirm what their position is, have they resigned? If so, request the employee to put this in writing. Highlight to the employee, unauthorised absence without good reason is a serious disciplinary matter which may give rise to gross misconduct.

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If no further contact is received from the employee, then the unauthorised absence is to be treated as a disciplinary matter. As such, the disciplinary procedure will be applicable therefore write to the employee requesting them to attend a disciplinary hearing.

If the employee fails to respond to the letter or the other various attempts at contact, it is probable that they will also fail to attend the disciplinary hearing.

You can go ahead with the disciplinary hearing if they fail to attend, the ACAS code of Practice on Disciplinary and Grievance Procedures states “where an employee is persistently unable or unwilling to attend a disciplinary  without good cause the employer should make a decision on the evidence available”.
As such, notify the employee of the outcome in writing – for example, summary dismissal on the ground of gross misconduct and give the employee the right of appeal.

In some cases, the employee may contact you and request to return to work. Disciplinary action may still be appropriate in relation to the period of the unauthorised absence. Therefore, still carry out a full investigation into the reasons for both the employee’s absence and their failure to make contact, treat is as a misconduct issue and deal with it by following the disciplinary procedure.

Roxanne BradleyLegal AdvisorRead More by this author

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