Unauthorised Absence Q&A: Can Consistent No Shows be Classed as a Resignation?

Year Published: 2019

My employee has not turned into work for the last couple of days with no phone call. Can I presume that he has resigned and process him as a leaver? 

Unfortunately, no you can’t.

When considering whether termination of employment has occurred, either by resignation or dismissal, both parties should understand what has taken place and it is necessary to understand who has terminated the contract.

If an employee simply does not turn in for work, you do not know why and therefore it may not be the employee’s intent to resign. If we simply infer that the employee has resigned and process him as a leaver, the employee may successfully argue that he was dismissed by the employer without notice and without any fair procedure, leaving you at risk of ending up on the wrong end of an unfair dismissal or discrimination claim (depending on the reasons for absence).

If an employee does not turn up for work without informing the company, this is an unauthorised absence which is a disciplinary offence (potentially gross misconduct depending on the circumstances) and therefore should be treated as such in line with the Company’s Disciplinary Policy and the Acas Code of Practice.

What’s the Legal Position?

The principles of fairness in misconduct cases have been identified from the leading case of British Home Stores Ltd v Burchell as follows:

  • The employer believed the employee to be guilty of misconduct;
  • The employer had reasonable grounds for believing that the employee was guilty of that misconduct;
  • At the time it held that belief, it had carried out as much investigation as was reasonable.

What is important is that it will not matter as to whether the employee was guilty of the misconduct or not, the Tribunal will consider whether the employer believed and had reasonable grounds for believing that the employee was guilty of misconduct at that time.

How can Employers Conduct Reasonable Investigations?

As can be seen from the above, before any decision to dismiss is made, you should ensure that you have carried out a reasonable investigation which would support any belief that the employee was guilty of misconduct (unauthorised absence). Therefore, it is important not to rush into a decision, but to make all reasonable attempts to try to find out why the employee is absent.

You should try to contact the individual by telephone and ensure that all attempts to contact the employee are documented.

Reviewing an employment contractIf you are unable to reach the employee, you should then write to him by email and post explaining that his absence is unauthorised and that he should contact you by a specific deadline i.e. 5pm the next day. You should explain that as unauthorised absence is potentially gross misconduct, any failure to contact you could result in him being invited to a formal disciplinary hearing.

If he doesn’t contact you within the deadline, then you should send him an invite to a disciplinary hearing setting out that the allegation is one of gross misconduct and therefore the hearing could result in summary dismissal. Further attempts to telephone the employee should be made and documented.

If he doesn’t attend the hearing, then you should invite him to a re-arranged disciplinary hearing and explain that if he doesn’t attend and doesn’t provide any reasonable explanation for his absence, the meeting could be held in his absence and a decision communicated to him.

If he doesn’t attend the reconvened hearing, it would be advisable to give him a call to see if you can find out why he has not attended. If you are not able to get hold of him, then you can consider holding the hearing in his absence.

If you have followed the above and have had no explanation or contact from the employee and you have attempted to contact them on multiple occasions, then this is likely to be found to be a fair dismissal. You should confirm the decision in writing, giving him the right of appeal. If he appeals against the dismissal, then he should be invited to an appeal hearing to ensure that you understand his appeal points and these should be considered carefully.

If at any point the employee gets in touch or returns to work, you should ensure you fully understand the reasons for his absence and his failure to contact the business. These details should be considered before any decision is made as this may impact on whether dismissal is reasonable in all the circumstances.

If you have found yourself with an unauthorised absence situation and/or are looking to conduct a reasonable investigation, please contact Katie Hodson in our Employment Law and HR team for advice on 0161 475 7670.

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