Help! My employee has gone AWOL.
AWOL. Absent without leave. It happens more often than you’d think. Your employee goes on holiday and “forgets” to come back to work. Your employee on maternity leave or sick leave doesn’t communicate with you regarding their return to work. You’re left trying to figure out what’s going on and what to do next.
In these circumstances, it could be seen as reasonable for you to consider that the employee has effectively resigned and to act accordingly. However, Employment Tribunals tend not to agree. You cannot assume that an employee has resigned and must instead go through the proper disciplinary process.
Not turning up for work and not having a good reason for being absent generally constitutes a breach of contract. You are perfectly entitled to dismiss an employee on that basis, having first followed the correct procedure. Before moving to disciplinary proceedings, you must have made a number of attempts, via all available means, to contact the employee. Having received no response, you must then write to the employee inviting them to attend a disciplinary hearing, ensuring that you send the letter recorded delivery to verify whether or not it has been received.
If the employee responds and subsequently attends the disciplinary hearing, they will have a chance to explain the reasons for their absence and you can make a decision on the outcome of the proceedings.
If the employee does not respond, you should go ahead with the disciplinary hearing in their absence. You must follow the same steps as though the employee were present, i.e. documenting everything that it said and producing minutes of the hearing. If the hearing concludes that, given the available evidence, there is no reason for the employee’s absence and they have in fact breached their contract, it is then possible to dismiss them. You will need to write to them to confirm your decision, remembering to give them the opportunity to appeal against your decision.
If you follow the steps outlined above, your now ex-employee will not be able to claim that the dismissal process was unfair. They may still wish to make a claim against you but making sure you follow the correct process will minimise any risk for your business. We can help – get in touch.