Alan McCormack | Senior Associate

What to do when your employee goes ‘AWOL’?

BBC Radio presenter Greg James failed to show up to work this morning for his 6.30am breakfast radio show after a wild night out following the BRIT awards 2020, therefore his show had to be filled by a colleague.

This raises the question as to what an employer can do in the event that an employee incurs unauthorised absence(s) from work and fails to make contact with his or her employer. We discuss this further below.

In the event that employee feels to attend work, this can potentially lead to disciplinary proceedings on the basis that the employee’s unauthorised absence is misconduct (usually in accordance with any disciplinary policy). The employee should be invited to a meeting to put forward the reasons for the unauthorised absence, and employers should be wary in proceeding with a meeting in the employee’s absence, unless there is a compelling reason to do so. However, if the employee persistently seeks to postpone a meeting or simply fails to attend without good reason, a decision can in some cases be taken in the employee’s absence.

It should be considered as to whether any period of absence follows a period of sickness, or any other reason which may justify and explain the absence.  Ideally, employers should make every attempt to contact an employee and establish whether that is a medical reason for the absence, and act accordingly.

Whilst an employer needs to establish a fair reason and follow a fair procedure before dismissal, this needs to be considered in the context of being unable to communicate or contact the employee. There will become a point where an employer will have to make a decision based on information available to it and having exhausted all avenues of contacting him for her. Generally, this will likely result in the contract being terminated with notice in accordance with the contract, but the employer may also rely on the employee’s repudiatory breach of the contract meaning that it could dismiss summarily for gross misconduct.  

Questions sometimes arise as to the possibility of an employer treating an absence with refusal to communicate as a resignation.  However while the employer may have the option of writing to the employee confirming acceptance of what it considers to be a repudiatory breach of the contract, this may not be deemed as acceptance until the employee has had sight of the letter so there would be risk associated with such an approach.

It should also be noted that in the absence of any rule to the contrary, holiday entitlement will continue to accrue during a period of unauthorised absence, if it is unaddressed. However, an employee demanding additional holiday pay when he or she has failed to turn up to work is likely to be low.

Should you require advice regarding unauthorised absence, or any other employment matter, please do not hesitate to contact our specialist team today.

Alan McCormack

Alan McCormack

Employment Law Team

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