In this month’s article we address unauthorised absence, also commonly referred to as absent without leave (AWOL), and we explore your options as an employer.
Whilst it can be tempting to consider this an automatic breach of contract, gross misconduct or a voluntary termination by the employee, it is rarely that simple and making such assumptions can quickly land employers in hot water.
Below we look at some of the key actions employers might consider in this scenario, as well as some tips for managing unauthorised absence in the workplace.
If an employee does not attend the workplace for their contracted or rostered hours and does not contact their employer to provide a reason for their absence, it is an unauthorised absence. Unauthorised absence is the legal term, however it is also referred to as AWOL, absent without leave, absent without permission, or No Show.
There isn’t a minimum amount of time that an employee needs to be away from work without permission to be classed as AWOL – whether the employee is an hour late for work or doesn’t attend the workplace for a week, it is an unauthorised absence if the employee hasn’t sought and gained permission from their employer.
Examples of unauthorised leave at work include:
In reality, dealing with these situations can be very frustrating for management, particularly when they have operational demands to satisfy, or deadlines to meet. Instances of unauthorised absence can also impact team cohesion and erode important employment relationships.
Therefore, it is important that employers are clear and consistent in their approach to managing unauthorised absence. It is also vital in the moment, that employers and managers avoid making any rash decisions or assumptions regarding the ongoing employment relationship.
There are various reasons why an employee may not turn up for work including; the taking of unauthorised holiday, no good reason at all such as they had other plans, or they may indeed have quit without sharing this information.
However, the unauthorised absence may also be the result of an emergency, or a serious illness which prevented the employee from being able to contact the employer.
Therefore, the first thing an employer should do when an employee goes AWOL, is attempt to contact them. Often there is a reasonable explanation and this may lead to a quick, easy, and informal resolution.
We must remember that ultimately employers have a duty of care towards their employees. Therefore, when an employee does not turn up for work, their employer should follow steps to check where they are and if they’re safe. This would be particularly important if there was any history or indications of mental health or welfare concerns.
Obviously if the employer had such concerns, they might reach out to the employee’s next of kin if they are unable to reach the employee, and may contact the employee’s GP if there was a genuine concern, or the Police if there was an imminent threat to life.
Without the presence or suggestion of any immediate welfare concerns and following the inability to reach the employee through concerted efforts, it is at this stage that the employer might look towards formalising the contact, should they need to rely upon it at the later stage.
They may consider what HR Policies are in place, such as absence or disciplinary policies and determine what the most appropriate action is in each case.
Whilst it may be tempting to take the employee’s unauthorised absence as a termination of the employment contract, in the view of a tribunal this is still considered a dismissal by the employer, and without any form of process, it would be deemed automatically unfair.
Therefore, employers might write to the employee with an assumed resignation letter highlighting that their absence is unauthorised and provide them a timeframe to make contact should resignation not be their intention. If the employer still does not receive a return by the date indicated, they should follow up with a 2nd letter confirming the resignation, termination date, any information regarding final payments etc. and importantly, give them the right to appeal.
As noted, this would still be a dismissal by the employer in the eyes of a tribunal, therefore it is important that the employer can demonstrate that they made reasonable efforts to reach the employee before assuming resignation. It would be preferable in this case that the employee confirms their resignation, in writing, to avoid the employer unilaterally making the decision.
Another option if you have been unable to reach the employee with initial efforts, may be to revert to formal action and follow your disciplinary Policy. This may be more appropriate if the employee has a longer service and can claim unfair dismissal (over 1yr service in NI, 2yrs in UK), if the case is not straight forward, if the unauthorised absence has had detrimental consequences, or if there is a disciplinary history with the employee.
This would usually involve investigating the employee’s unauthorised absence, inviting the employee to a disciplinary hearing, rescheduling that hearing if the employee did not turn up, and then holding the reconvened hearing in the employee’s absence. If the employee did not attend the reconvened hearing, employers could dismiss the employee in their absence, and still demonstrate following a fair process.
Can employers withhold pay for unauthorised absence – If someone does not turn up for work or is late, their employer does not have to pay them for the time they did not work. This is because the employee is not fulfilling their contract of employment. However, employers must be mindful not to make a deduction which would make the employee fall below NLW for the time period worked.
What if an employee gets in contact to say it was not their intention to resign – If this happens before termination date is confirmed and appeal period passed, the employer would not be able to rely on an assumed resignation as reason for termination. The employer would determine what action to take based on the employee’ explanation for the unauthorised absence along with the impact of it. For example, if the employee’s absence resulted in harm to person’s or loss of business, and the explanation was not justification, it may be more reasonable for employer to take disciplinary action.
What if an employee sends a sick line to cover the sickness at a later date – Again in this situation the employer would not be able to rely on an assumed resignation as reason for termination. Whilst the employer may still explore the reasonableness of the delayed notification and why absence and notification procedures were not followed, there is a risk any disciplinary action taken or withholding of sick pay may be deemed discriminatory. Statutory or contractual sick pay should be back paid if the employee is eligible, and the sick line should cover the full period of absence.
Why does the employer need to do anything – When an employee goes AWOL, some employers may be tempted to take no action in order to save time / resource, to avoid risk, or to just hope it goes away on its own in time. However, taking action in some circumstances and not others already leaves the employer open to a claim of discrimination due to lack of consistency. Taking no action also leaves the employer in limbo regarding the future of that employee, and the longer the situation is left unmanaged, the more difficult it is to pick up and take action down the line.
If you need any support when your employees’ go AWOL, or in proactively managing and reducing unauthorised absence within your workplace, please do reach out to us.