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As an employer, you may find yourself in the position of needing to end your employee’s employment with you and sometimes without notice. This is also known as dismissal. It is important to be aware of the rules regarding employee dismissal to ensure you meet your legal obligations. If you do not, you could find yourself faced with an employment tribunal and potentially paying your employee compensation. This article will outline what an unexplained absence is and whether you can dismiss an employee for this.
General Rules for Dismissal
Whilst you are entitled to dismiss employees, you must ensure that when you do so, you give a valid justifiable reason for it and that you demonstrate you have acted reasonably when doing so.
The general rules you must be aware of regarding dismissal include:
- being consistent with all employees in terms of any reasons given for dismissal;
- investigating any situations surrounding dismissal thoroughly; and
- treating all workers fairly regardless of their employment status.
Generally, you may dismiss your employee for the following reasons:
- an inability to correctly carry out their job;
- illness;
- redundancy purposes;
- gross misconduct;
- a ‘statutory restriction’, which means that employing them would break the law, such as an employee who needs to drive but no longer has their driving licence; or
- a ‘substantial reason’ such as the employee unreasonably refusing to accept changes within your business which affect the employee’s terms; and
- a situation where it is not practically possible to employ them anymore, such as if floods destroyed your office.
What Is an Unexplained Absence?
An unexplained absence is also known as:
- an unauthorised absence;
- an unplanned absence
- absent without leave (AWOL); or
- absent without permission.
This means that your employee has either not given you a reason for not attending work or not contacted you to tell you that they will not be attending work. In other words, you have not authorised the absence.
Authorised absence is, for example:
- taking a form of paid leave such as annual, sick or maternity leave;
- unpaid leave;
- jury service; or
- compassionate leave.
Some examples in the table below can illustrate how an unexplained absence might be treated.
|
Unexplained absence due to a family death |
Excusable absence |
|
Unexplained absence due to confusion over shifts |
Potential misconduct |
|
Unexplained absence due to taking a holiday the employee did not have permission to take |
Potential gross misconduct |
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Dismissing an Employee for Unexplained Absence
Suppose your employee has an unexplained absence without good reason. In that case, this can be considered misconduct. As explained earlier in this article, this is a potential cause for an employer to consider dismissal as it is a disciplinary offence. Some instances of an unexplained absence could even be considered gross misconduct.
You may wish to consider further investigations where your employee does not provide adequate reason for their absence which could be part of a disciplinary procedure. As an employer, it is advisable that you list potential disciplinary offences, such as unexplained absence, within your disciplinary policy for clarity for your employees. A consequence of not carrying out a procedure to investigate the unexplained absence could result in the employee claiming unfair dismissal.
Before considering carrying out your disciplinary procedure, where absences are not continuous but happen now and again, an employer may wish to first follow up the absence with a return-to-work interview or with oral and written warnings.
Investigating an Unexplained Absence
Here is a typical procedure an employer may use to investigate an unexplained absence before considering or carrying out dismissal.
First Day of Absence
- attempt to contact the employee – this is important mainly because you as an employer have a duty of care towards your employees;
- keep a record of your attempts to contact the employee;
- contact the employee’s emergency contact when you are unable to make contact with the employee; and
- write a ‘letter of concern’ or an email to the employee, reminding them that they are required to inform you as their employer if they are absent from work and ask them to explain their absence.
Second Day of Absence
If your employee remains absent the following day, you should attempt to contact them again. This might include a visit to their place of residence should the employee live on their own, if you are concerned for their physical wellbeing. If you still cannot locate them, email and post a recorded delivery of a letter to the employee, requesting them to attend a disciplinary hearing, with significant notice, to explain their unexplained absence. This should detail all attempts the employer has made to contact the employee.
Disciplinary Meeting
This should take place in line with the employer’s disciplinary procedure. Should the employee not attend this, reschedule with significant notice. A decision can, however, be made in the employee’s absence which can include dismissal. You should note that the employee has the right to appeal any decision, including dismissal.
Key Takeaways
If your employee has an unauthorised absence, this means that they have not come to work, not provided a reason, and you have not permitted them to be absent. There can be many reasons your employee may have an unexplained absence, and some may be fair and genuine. There may also be occasions when your employees have unexplained absences, which cause concern. Therefore, an option open to you may be dismissal.
However, dismissal is a last resort. To ensure that any potential dismissal is fair and does not give rise to a claim for unfair dismissal, you should ensure that you initially investigate the reasons for unexplained absence, carrying out a fair disciplinary procedure as required.
If you need help with dismissing or dealing with your employee for an unexplained absence, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
An unexplained absence can be termed an unplanned absence, absent without permission, absent without leave (AWOL), or an unauthorised absence. It is when an employee does not turn up to work, has not given an adequate reason and has not been granted permission not to attend.
No, an employer should not normally immediately dismiss an employee for an unexplained absence. Instead, they should investigate it fairly, allowing the employee an opportunity to respond. This could be through the employer’s disciplinary procedure. Should the employer decide to dismiss at the end of this, the employee must have a right of appeal.
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