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The Disappearing Employee
Monday, November 7th, 2011
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A frustration for any employer is the employee who just disappears. Here one day, gone the next. You hear nothing, wonder if the employee is ill, then after a few days of hearing nothing, you cease to care. So what do you do, just write him or her off the books and be ready to send him packing if he does have the temerity to turn up with some lame excuse? Well, that may work, but equally may not, and you may find yourself facing a hard-nosed solicitor in the Employment Tribunal.
The problem is that an employment contract remains fully in force until one of the parties takes appropriate action to end it. An employee ceasing to attend work does not end a contract unless he or she dies, in which case the contract is said to be frustrated. But in the absence of any action by the employee, the contract will remain in force until you, the employer, take steps to end it. In the meantime you will have an absent employee, clocking up service. You therefore have two options: wait to see if the employee returns, or bring the employment contract to an end. If you choose the first option and do nothing, the employee will remain in your employment and, if he or she returns a few weeks later you may choose then to terminate the employment but will have to give notice based on the length of service, which will include the period of absence. If at that time the length of service exceeds one year, then you will also have to have a fair reason for dismissal to avoid the employee successfully claiming unfair dismissal in the Employment Tribunal.
Of course the employee may have decided to give up working for you but has not bothered to let you know. Perhaps he or she may have mentioned to another of your employees that he has left. Or you may be aware that he is working for another employer because, for example, you have been asked to provide a reference. But none of these circumstances entitles you to treat the employment relationship as ended, therefore you may move towards dismissal but nevertheless must first carry out an investigation.
By now you are likely to be viewing the missing employee as an irresponsible person who deserves to be given no consideration, but take care because there could be a good reason for the failure to turn up. He may have been in an accident and is lying unconscious in a hospital or is in police custody. Or something similar may have happened to a close family member. A responsible and rational person would think to inform you promptly, but at times like those we tend to act irrationally. Therefore do what you can to find out what may have happened. To begin with try to make contact by landline or mobile phone. If that approach fails, ask if anyone at work knows why the employee might be absent and, if anyone lives close by, ask if they would be prepared to call at the home. If someone agrees to do this, make absolutely clear that the visit is solely to enquire whether there might be some serious problem and not to ask detailed questions or pass on management messages. If you have reason to believe that the employee lives alone, have a word with the police in case the person is lying at home ill or injured and unattended. The employee may have worked for you for a short period only, but nevertheless you should take reasonable steps to ensure his or her welfare, and of course this is particularly important if the employee has worked for you for a number of years and has no record of unexplained absences.
Should none of these approaches get you anywhere, send a letter to the employee’s last known address, pointing out that going absent from work without giving a clear and acceptable reason amounts to a serious breach of company rules. The letter should instruct the employee to either return to the workplace promptly or to make contact by letter or telephone to explain both what has happened and how long the absence is likely to continue. Post the letter by first class mail or, better still, deliver it by hand. In the latter case whoever delivers the letter should either be accompanied by a witness or should make a careful note of the time of delivery. If the employee responds to this letter and indicates that he or she considers him still to be your employee, you need to take action on two fronts. First, decide whether the sudden absence was justified, and second consider whether there was a satisfactory reason for the person failing to inform you. If you are not satisfied on either of these two points you should instigate appropriate action under your disciplinary procedure, starting of course with a full investigation and detailed discussion with the employee.
If however you receive no response to the letter you should write again, but this time state that both the absence and the failure to notify are serious disciplinary offences and that you will therefore hold a formal disciplinary hearing at a specified time a few days hence. The employee should be asked to attend the hearing or submit written evidence, but told that, if he or she fails to do so, the hearing will continue in his absence. And finish by stating clearly that, if the person fails to offer a satisfactory explanation for the absence and the failure to inform you, the hearing is likely to – not will – result in the employee being dismissed summarily. Then, at the appointed time, hold a disciplinary hearing. If the employee attends, proceed in the normal way. However, if he or she does not turn up, arrange for someone to be present to ensure that the employee’s interests are properly respected. In the case of a unionised workplace, this should be the appropriate union representative.
If as a result of this hearing you decide to dismiss the employee, make a careful note of all that was said during the meeting and keep this with the records of your actions taken beforehand. Finally send a letter to the employee’s last known address, marking the envelope “strictly personal” and showing your address for return of the letter should it not be delivered. The letter should confirm that the employee was summarily dismissed on the date of the disciplinary hearing, what outstanding wages, holiday pay and other entitlements are due up to that time, and what the employee should do to collect any personal possessions.
This no doubt seems like a lot of work for dealing with someone who could not be bothered to ring in, but it is necessary to avoid legal complications. In any case the three letters may be stereotyped whilst the well-conducted disciplinary hearing need take only a few minutes of management time.
