Guide to Unauthorised Absence

From time to time, as an employer, you might find yourself faced with a situation where an employee has failed to report to work and has failed to contact you to provide a reason for their nonattendance. The employee is effectively absent from work without either explanation or permission. This is often called unauthorised absence and this fact sheet sets out guidance to assist you in dealing with cases of unauthorised absence from work.

Making Contact with the Employee

Should an employee fail to report to work as expected, you should attempt to contact them by telephone in the first instance to ascertain what the position is – preferably on the first day of unauthorised absence. Try both the employee’s landline number and mobile telephone number, if you have both numbers. If the employee fails to answer, leave messages if possible asking them to contact you as a matter of urgency to advise you of their whereabouts. Ensure you keep records of all attempts made to telephone them (date, time, number called, whether a message was left, etc.). If you have a personal e-mail address on file, also send the employee an e-mail. In addition, consider asking the employee’s close work colleagues if they know anything.

If these efforts to contact the employee prove unsuccessful i.e. because the employee fails to answer the phone or return your call or e-mail within a reasonable period of time, your next step is to get in touch with the employee’s next of kin or named emergency contact, assuming you have telephone numbers for them. These individuals are likely to be the employee’s spouse, partner, parents, children or siblings so they might know where the employee is and/or why they have failed to report for work. It is important when telephoning third parties that you do not divulge to them any personal information relating to your employee, for example by mentioning that there is a potential disciplinary issue relating to their unauthorised absence. The sole purpose of making contact with them is to demonstrate that you have done all you can to contact your employee; it does not give you grounds to discuss them or their employment with any third party. Therefore, simply state that you are trying to contact your employee as they are due to be at work and ask if they know their whereabouts or how they might be contacted. If necessary, ask the third party to pass on a message to the employee asking them to contact you urgently. If the third party does not answer the telephone, again leave a message if possible and keep a log of your attempts at contact.

On the second day of unauthorised absence, write to the employee advising them that they have failed to report for work on the relevant dates without providing any reason or explanation for nonattendance. Set out the attempts you have made so far to contact them and ask them to get in touch with you as a matter of urgency to let you know what the position is. For example, if they have resigned, they should confirm this to you and supply you with a written resignation letter. You should point out in this letter that unauthorised absence without good cause is a serious disciplinary matter, which may amount to potential gross misconduct. Give the employee a set deadline to contact you, allowing at least a couple of working days.

Also consider writing to the employee’s next of kin or named emergency contact at the same time but keep this letter simple and only state that you are currently trying to contact your employee and therefore request the recipient to pass the letter on to them and ask that they make urgent contact with you.

Assumed resignations

It is important to be aware that, in the absence of an express written or verbal resignation, it is not safe to simply assume that an employee has resigned by their conduct in continuing to fail to report for work and leave it at that. You must therefore take all reasonable steps to contact your employee during their unauthorised absence and, if necessary, be in a position to demonstrate to an Employment Tribunal that you have done so.

It is only in exceptional circumstances that resignation will be the proper inference to draw from an employee’s conduct. In employment law terms, there cannot be a resignation just by the withdrawal 2 of labour and the failure to contact you. In most cases, the employee’s employment does not end until you accept their fundamental breach of contract in failing to attend work by actually dismissing them. So, if you write to the employee stating that you assume they have resigned (and then send out their P45), this is likely to be construed by an Employment Tribunal as an express dismissal on the ground of ‘’some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’ (SOSR). See the fact sheet on Some Other Substantial Reason Dismissals for further information.

Assuming you can demonstrate that SOSR is the potentially fair reason for dismissal, the determination then by the Employment Tribunal of the question whether the dismissal is fair or unfair depends on whether in the circumstances (including the size and administrative resources of your business) you acted reasonably or unreasonably in treating the unauthorised absence as a sufficient reason for dismissing the employee and whether you followed a fair dismissal procedure. This will be determined in accordance with equity and the substantial merits of the case. You will need to show you made sufficient attempts to contact your employee over a reasonable timeframe and gave them ample opportunity to get in touch. As discussed above, this will involve trying to make regular contact with the employee by telephone and e-mail, contacting the employee’s next of kin to pass messages on and writing at least a couple of letters (not just one followed by the P45). You could even try to visit the employee at home.

Disciplinary action

Employees who fail to make any contact at all The alternative, and better, approach to asserting there has been an assumed resignation in relation to an employee who fails to make any contact at all is to incorporate your normal disciplinary procedure into the process. This will necessitate writing to the employee to invite them to attend a disciplinary hearing to discuss their ongoing unauthorised absence.

If the employee has failed to reply to your letters, it is highly likely that they will fail to turn up to the disciplinary hearing and will not provide any reason as to why it was not reasonably practicable for them to attend. In this case, the hearing should be able to go ahead in their absence and then they should be notified of the outcome in writing and given a right of appeal. In many cases of continually absent employees, the sanction will be summary dismissal on the ground of gross misconduct. In this case, the potentially fair reason for dismissal will be misconduct, not SOSR. Such a dismissal is likely to be fair as long as it was reasonable for you to treat the employee’s ongoing absence as sufficient reason for dismissing them and you adopted a fair disciplinary procedure.

Disciplinary action once an employee has returned to work

There will be circumstances where your employee does eventually report back to you and ask to return to work. In this scenario, disciplinary action may still be appropriate in relation to the period of unauthorised absence. The first step you should take is to carry out a full investigation as to the reasons both for the absence and the failure to make contact, as either or both are potential disciplinary issues. Particular care needs to be taken where the unauthorised absence followed a period of sickness absence or if the reason for the absence related to emergency care of a dependant. If there are no acceptable or satisfactory reasons for the absence and/or the failure to make contact, the matter should be treated as a misconduct issue and dealt with under your disciplinary procedure. Again, see the fact sheet on Disciplinary Hearings and Appeals – Fair Procedure for information on instituting a fair disciplinary procedure. A formal warning may well be appropriate and, in some cases, summary dismissal on the grounds of gross misconduct might well be justified

Unauthorised absence and annual leave

Often unauthorised absence will overlap with annual leave, either because the employee has had a request for annual leave refused and they decide to take the time off anyway or they fail to return to work after a period of approved annual leave.

Unauthorised annual leave

Employers can legitimately refuse an employee’s request for annual leave – see the fact sheet on the Working Time Regulations for more information. However, in order to preserve mutual trust and confidence, you should only turn down annual leave requests on legitimate business grounds, such as to maintain adequate staffing levels taking account of other approved annual leave or where the request falls during a peak work period. You should also act fairly. On occasions, an employee may indicate that they intend to take the time off despite your refusal. If this happens and it comes to your attention, you should write to the employee stating that if they take the time off, you will treat their unauthorised absence as a very serious disciplinary offence amounting to potential gross misconduct and that they therefore risk summary dismissal on their return to work after their time off. Finally, invite the employee to reconsider their position in the light of the possible consequences.

Notwithstanding the above, if the employee still takes the time off, you will be in a position to treat this as a disciplinary matter upon the employee’s purported return to work and therefore consider suspending them on the day they return. Assuming that a fair disciplinary procedure is followed, you had legitimate grounds for turning down the employee’s annual leave request and you warned them of the consequences of unauthorised absence, a dismissal on these grounds is likely to be fair.

Overstaying annual leave

Where an employee fails to return to work on the due date of return after a period of approved annual leave, you should deal with the matter in the same way as you would any other period of unauthorised absence i.e. by following the guidelines set out above. Often, employees who fail to return to work following a period of annual leave will say this was because of illness. Such employees are nevertheless required to follow your normal sickness absence reporting procedure and the failure to make contact is still a potential disciplinary issue, but you need to be more sympathetic if they fell ill whilst abroad and therefore they were unable to come home as a result. In this case, you should ask to see proof of the fact they sought medical advice from an overseas doctor, such as a foreign medical certificate, together with proof of their original and new flight or other travel details.