Unauthorised absence: case study

Sarah-Marie Williams of Clyde & Co LLP continues a series of articles on unauthorised absence with a case study. The case study considers how an employer should deal with a situation in which two employees take unauthorised absence for very different reasons. 

Safe Co is a medium-sized insurance company. Michael, a manager in the claims department, has been with the company for 10 years and is aware from past experience that after the Christmas period there is often an increase in unauthorised absences. This year is no exception. It is Monday morning and he has just received a call from the assistant manager to inform him that two members of the team, Joanne and Helen, have not arrived for work. Given that there have been a lot of coughs and colds going around the office, and high levels of flu have been reported, he initially expects calls from Joanne and Helen reporting sickness absence. However, by late morning, neither Joanne nor Helen has contacted him, or anyone else at the company.

What action should Michael take at this stage?

Michael should try to contact Joanne and Helen to establish the reason for their absence as soon as possible. Early intervention is important and Michael should call them both within a few hours of their normal start time to make them aware that their absence has been noted. He should also call their next of kin. If Michael is unable to reach either Joanne or Helen, he should continue to make reasonable efforts to contact them over the next few days, both by telephone and letter, asking them to make contact with the company. Michael should ensure that he keeps a record of his attempts to reach both employees.

Can Michael take disciplinary action against Joanne and Helen in respect of their unauthorised absence?

Unauthorised absence without good cause is a disciplinary offence. However, before Safe Co takes any disciplinary action against either Joanne or Helen it will need to investigate the position and try to obtain an explanation from them as to the reason for their absence. It is important that Michael does not make assumptions about Joanne and Helen's unauthorised absence. He should not commence disciplinary proceedings against either of them, at this stage.

Michael is unable to contact either Joanne or Helen, or their next of kin, by phone that day. Joanne's phone goes unanswered and Helen's phone is engaged each time he tries to ring her. When he arrives at the office the next morning he picks up a voicemail from Helen saying that a burst pipe in the attic has caused a lot of internal damage to her home. She apologises for not getting in touch earlier but she has been so busy trying to find a plumber to fix the leak and clearing up the mess that contacting work slipped her mind.

Does Helen's absence constitute an unauthorised absence for which the company should take disciplinary action?

Helen is absent without permission but she has a good reason for her absence. She also contacted Safe Co as soon as the immediate emergency was over. Although Helen does not have a statutory right to take time off in these circumstances, her absence is justifiable due to her domestic emergency.

Helen rings Michael the following day to say that she cannot come into work as she has to wait for the insurers to come and assess the damage to her home. She returns to work on Wednesday. Michael decides not to institute disciplinary proceedings against her, but asks her, in the event of a similar situation in future, to contact Safe Co earlier in the day. Joanne continues to be absent. Michael continues to try to contact her by telephone and letter. The assistant manager tells him that Joanne applied for a week's holiday for this week, which was refused because the department is very busy. Michael also learns from the HR department that Joanne has a poor attendance record. By Friday, Michael has still not heard from Joanne and the assistant manager informs him that, given the length of Joanne's unexplained absence, in his view, Safe Co could treat Joanne's employment as having automatically terminated. Michael is unsure what action to take.

Can Safe Co treat Joanne's employment as automatically terminated?

No. Joanne's employment has not automatically terminated and Michael should not assume that it would be lawful for Safe Co to dismiss her, in the absence of a fair procedure. If Michael suddenly terminates Joanne's employment because of her week of unauthorised absence, Safe Co could be liable in respect of unfair dismissal.

What action should Michael take?

Michael should try to follow a fair procedure. He should write to Joanne to warn her that she may be subject to disciplinary proceedings. If Joanne continues to fail to contact Safe Co, Michael should write to her again, setting out the allegations against her and scheduling a date for a disciplinary meeting. It may be appropriate for Michael to hold the disciplinary meeting in Joanne's absence if she fails to return to work and does not provide Safe Co with an explanation for her absence.

Joanne finally calls Michael and explains that she had already booked a flight abroad and therefore took the holiday despite her leave request being refused. She informs Michael that she will be back in the office the following week. Michael decides to commence disciplinary proceedings against Joanne.

Both Helen and Joanne took unauthorised absence but Safe Co is taking disciplinary action against Joanne only. Is the company acting fairly?

While Safe Co, like any employer, should be consistent, fair and non-discriminatory in how it deals with authorised absence, it is important that it also carefully considers the facts of each case before it takes any formal action. Helen was absent from work without permission but she had a good reason for her absence and notified Michael as soon as she could, in the circumstances. Her absence was for two days only, to sort out her domestic emergency. However, Joanne was absent for a week and made no attempt to contact the company. It is clear that she made a request for annual leave that was refused, but she went on holiday regardless. She failed to contact Safe Co or provide an explanation for her absence until she returned a week later. She also has a poor absence record. Therefore, Safe Co can justify the difference in its treatment of Joanne and Helen's unauthorised absence.

Next week's topic of the week article will be a checklist for employers on dealing with and reducing unauthorised absence and will be published on 24 January.

Sarah-Marie Williams (Sarah-Marie.Williams@clydeco.com) is a legal director at Clyde & Co LLP.

Further information on Clyde & Co LLP can be accessed at www.clydeco.com.