Help, my employee’s gone missing!!
Knowing what to do when an employee simply disappears from work is always a tricky question, how long do you leave it before calling it a day and simply ending employment, can you actually do that, what do you need to do to protect your business? These are all questions that can make a manager weep over their cornflakes.
So we’ve set out below some simple guidance on what to do when your employee goes AWOL.
What to do?
The first step before taking any action it to try and make contact with the employee. If this led to dismissal, an employer would need to show that they have tried to contact the employee over a period of time before dismissing them. This could include:
- Sending letters to the employees last know address (recorded delivery)
- Calling them on the phone
- Sending emails
- Asking about them with colleagues and friends
- Calling at their home
The reasons for absence could be numerous, from the serious issues of ill health, to the fact that they simply have another job and didn’t tell you, but its the employers job to try and find out before taking action.
It’s always a good idea to send letters to the employee asking them to get in touch, especially if they are sent recorded delivery. The first letter would normally be sent after 1 or 2 days of not attending work, and would simply ask the employee to get in touch by a specific date to make sure they are okay. This letter would also state that the leave is unauthorised and unpaid.
The next letter would be sent after the previous deadline had passed, and would once again set a deadline for getting in touch – normally 4-5 days in the future but would indicate that failure to respond may lead to disciplinary action being taken.
If still no response is heard, the employer cannot not simply sack the person. As this may lead to unfair dismissal if the employee were to quickly return for work.
So it is good practice to send a third letter to the employee inviting them to attend a disciplinary hearing for failure to attend work. Once again they would be informed of their rights to be accompanied and given at least 72 hours notice.
If, after this letter has been sent and the date of the hearing has passed it is good practice to send a final letter to the employee inviting them to a final disciplinary hearing. This letter should state the hearing may take place in their absence and that they may be dismissed as they have not been at work for xxxx period of time. Once again the employee has the right to be accompanied and should be given at least 72 hours notice.
At this final stage, should the employee still not make contact, then the employer could dismiss the employee for failure to attend work. This is confirmed in a final letter, confirming their dismissal and informing them of their right to appeal.
It’s important not to make rash decisions on employees, and so you should think carefully about how long the person has been absent from work before dismissing them, especially if this is out of character. As a rule of thumb, it would be advisable to leave it at least five weeks before terminating their employment.
Whilst an employee is absent without authorisation the employee is not normally entitled to receive pay, but they would still accrue holiday pay (as this is a legal right).
Therefore, if the employee is dismissed the employer should pay them any holiday pay due, plus any pay relating to bonuses or overtime earned whilst at work.
An employee cannot self dismiss themselves, they either resign or are sacked. So the thought that by not turning up they had resigned is not a valid legal argument.
An employee can still bring a claim for unfair dismissal as long as they apply within 90 days of being terminated.
Employers can take action against employees who fail to attend work for long periods of time, ultimately leading to dismissal. The employer would have to show:
- They had tried to contact the employee on numerous occasions (with fair time limits for responding) before acting
- They left it for a period of time before dismissing the employee
- The employer followed a fair process (disciplinary) and followed the appropriate rules
- The employer paid any monies owed to the employee
- The employee was given a right to appeal the decision