The term commonly used to describe the situation of an employee not turning up for work with no prior authorisation for the time off is absent without leave, or AWOL. In more legal terms, the employee is classed as being on unauthorised absence which is technically a breach of contract because the employee has broken their contractual requirement to turn up for work.
This is a more common occurrence than people think, particularly in the early days of an employment relationship and can leave an employee with an unforeseen absence and no details on where the employee is, how they are and when or if they may return.
Clearly there can be many reasons for unauthorised absence. An employee may have been on sick leave which was covered by medical certificates and then fails to return to work when the sick note has run out; or fail to return from a period of booked annual leave. Alternatively they may simply not turn up for work as normal one day.
Whatever the reason, steps should be taken to contact the employee in the first instance. Employers should not jump to conclusions that the employee has simply taken the decision not to turn up for work. In some cases, something may have happened which prevents the employee from turning up and also prevents them from notifying you of their absence. However, attempts should be made to contact them, and that could also include contacting their emergency contact person if you hold those details.
If it still has not been possible to get in touch with the employee, the next steps would depend on how long the employee had been with you. Employees gain protection against unfair dismissal once they have been with you for two years and this is an important consideration because sometimes action by the employer can be deemed as a dismissal of sorts, called constructive dismissal.
Employers may be left in the position where they have no other option but to consider dismissing the employee because of the prolonged length of the unauthorised absence.
Where service is less than two years, a dismissal could be effected swiftly because there is generally no risk of claiming unfair dismissal.
Where service is two years or more, the employer needs to tread more carefully. The concept of ‘self-dismissal’ comes into play here and employers may think that they can consider the employee to have self-dismissed because they have not come into work and have not contacted the employer. However, this is a risky route to take.
Several tribunal cases have considered the concept of self-dismissal and it remains a grey area of employment law. As is the key with all parts of employment law, procedure is key and employers must ensure that they have taken all reasonable steps to contact the employee to ascertain whether it is their wish to resign. It is also important that the employer informs the employee of the possible consequence of their continued absence without contact ie that their employment will be terminated.
Written communication should be sent recorded delivery so that employers are able to ascertain whether it has been received and who by. If letters are returned undelivered, it may be appropriate to try other means of contacting the employee, including email and text message. Where possible contact details become known, ensure you try all of these. Records should be kept of all attempts at communication so that they can be used as evidence if required.
Only at the stage where the employers considers they have reasonably tried to find all possible contact details with which to communicate with the employee should the employer consider terminating employment.
Alan Price is employment law director of Peninsula.