Unauthorised absence: frequently asked questions

Sarah-Marie Williams of Clyde & Co LLP concludes a series of articles on unauthorised absence with some frequently asked questions that consider, among other things, how employers should deal with unauthorised absence and whether or not employers must pay employees during periods of unauthorised absence. 

What constitutes an unauthorised absence?

An unauthorised absence is an absence during which an employee fails to attend work but where he or she does not have a statutory or contractual right, or the employer's permission, to be absent. Absences that are due to pre-booked annual leave, genuine and correctly reported sickness absence or family-related (eg maternity) leave, or that result from a statutory right to take time off (for example to look for work in a redundancy situation, or for antenatal care) do not constitute unauthorised absence. If an employee fails to attend work without a good reason, this will amount to unauthorised absence.

Should employers deal with all types of unauthorised absence in the same way?

No. Unauthorised absence may take various forms. It can take the form of an isolated unplanned absence for a good reason (for example to care for a dependant in the event of an emergency) or a persistent pattern of unauthorised absences (for example "Monday morning syndrome"). Alternatively, an employee may "go AWOL", taking an extended period of unauthorised absence. The length of, and reason for, the absence should determine how the employer deals with it.

While unauthorised absence without good cause is a disciplinary offence, an employer faced with an incidence of unauthorised absence should investigate the situation and hear the employee's explanation, before it takes formal action.

Clearly, employers need to be consistent, fair and non-discriminatory in how they deal with unauthorised absence, or risk being liable in the event of an unfair dismissal and/or unlawful discrimination claim. However, the level of action that is appropriate for an employer to take in respect of unauthorised absence will depend on the circumstances of the case. For example, an employee who takes a one-off day of unauthorised absence for a good reason would normally be treated differently to an employee who has a prolonged period of absence without proper cause and who repeatedly fails to return the employer's attempts to contact him or her.

Are employers obliged to pay employees for periods of absence that are unauthorised?

There is no obligation on employers to pay employees their normal pay for periods of unauthorised absence. An employer that fails to pay an employee in these circumstances would not normally be in breach of the employee's contract of employment. Non-payment would also not amount to an unlawful deduction from wages because payment would not be "properly payable" (under s.13(3) of the Employment Rights Act 1996) in the first place. However, to help reduce the likelihood of a dispute about non-payment employers can include a clause in the contract making clear that employees will not be paid for periods of unauthorised absence (see the model Contract clause on deductions from wages for unauthorised absence in the XpertHR policies and documents section).

What should an employer do if an employee who is usually reliable fails to turn up for work?

If a usually reliable employee fails to attend work and does not contact the employer to inform it of his or her whereabouts, the employer should make reasonable efforts to contact him or her to ascertain the reason for the absence. Ideally, it should do this at an early stage, usually within a few hours of the employee's work start time. The purpose of making contact is primarily to make the employee aware that the employer has noted, and is dealing with, the absence. However, the employer may also be concerned about the employee's wellbeing, particularly where he or she is usually reliable, as the lack of contact is more likely to indicate that there is a problem (for example a family emergency or accident). It may be appropriate to try to contact the employee's next of kin if attempts to contact the employee fail.

If the employer is unable to make contact with the employee on the first day of absence, it should try again the following day and follow this up with a letter, if necessary, asking the employee to make contact. The employer's ongoing attempts to make contact should continue to reflect the possibility that there may be a genuine reason for the absence, particularly in cases where the employee is usually reliable.

The employer should keep a record of all the attempts that it makes to contact the employee. If and when he or she returns to work, the employer should have a conversation with him or her to discuss the situation and the reason for the absence. If the absence is attributable to issues at work, such as bullying or harassment, the employer will need to investigate further. However, if the employee offers no good reason for the absence, the employer may treat it as a disciplinary matter. The employer may take the employee's record of reliability into account when deciding what level of disciplinary action is appropriate.

What should be included in a policy on unauthorised absence?

Employers should adopt an absence policy that makes clear to employees how they intend to manage, record and monitor absence, including unauthorised absence. It should include examples of what constitutes authorised and unauthorised absence (see above). The policy should cross refer to the employer's disciplinary policy and expressly state that unauthorised absence without a good reason is a disciplinary offence and that the employer will invoke its disciplinary procedure, where appropriate. It should also include details of how, to whom and by what time employees should notify the employer of their absence. The absence policy should make reference to the fact that the employer is under no obligation to pay employees their normal pay for periods of unauthorised absence.

Can an employer lawfully dismiss an employee whose absence is not authorised?

Whether or not an employer can lawfully dismiss an employee for unauthorised absence depends on the reason for, and length of, the absence and the procedure that the employer follows. It will be difficult for an employer to argue successfully that its dismissal of an employee for one day's unauthorised absence that was taken for a good reason was fair. However, if the unauthorised absence is prolonged, persistent and/or not for a genuine reason, dismissal is more likely to be fair, provided that the employer follows a fair procedure.

In seeking to follow a fair procedure, the employer should: provide the employee with details of the allegations against him or her in writing together with any supporting evidence; write to the employee to invite him or her to attend a disciplinary meeting; give the employee the opportunity to put his or her case forward; allow the employee to be accompanied at the disciplinary meeting by a trade union representative or colleague; and give the employee the right of appeal against the dismissal.

If an employee's absence is prolonged and he or she fails to respond to the employer's attempts to contact him or her, the employer may need to carry out the disciplinary hearing in the employee's absence. It should write to the employee inviting him or her to a hearing and to advise that it will proceed in the employee's absence if necessary.

Next week's topic of the week article will be the first in a new series on the abolition of the default retirement age and will be published on 7 February.

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.