Unauthorised absence: overview

Sarah-Marie Williams of Clyde & Co LLP begins a series of articles on unauthorised absence with an overview. Employers may experience higher than usual levels of unauthorised absence from work after the Christmas period. This article looks at how employers should deal with unauthorised absence.

Introduction

After the Christmas break, many employees dread the thought of going back to work and a general post-Christmas malaise can result in an increase in unauthorised absence during the early part of the new year. Travel difficulties caused by bad weather can also increase the level of absenteeism with which employers have to contend (see Winter issues: Winter weather FAQs for more details).

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 due to pre-booked annual leave, genuine and correctly reported sickness absence and maternity or other family-related leave, or absences as a result of a statutory right to take time off (for example to carry out public duties or care for dependants) do not constitute unauthorised absence. If an employee fails to attend work without a good reason, or cites illness as the reason for absence after having failed to comply with the employer's rules on reporting and certifying sickness absence, this will amount to unauthorised absence.

Unauthorised absence may take the form of the odd day off work. However, for some employees, a pattern develops, for example a "Monday morning syndrome". Extended periods of unauthorised absence, during which an employee goes "AWOL" and fails to make contact with the employer, are less common, but are more likely to occur after holiday breaks.

Dealing with unauthorised absence

It is difficult for employers to manage unauthorised absence as it is unpredictable and often accompanied by an explanation that is evasive and/or unconvincing.

Early intervention is important. If an employee fails to attend work and does not contact the employer to report the absence and 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. This should be done at an early stage, usually within a few hours of the start of the absence, to make the employee aware that the employer has noted the absence. If the employer is unable to make contact with the employee on the first day of absence, it should try again the following day (assuming that the employee has not returned to work) and follow this up with a letter, if necessary, asking the employee to make contact. Clearly, employers in this situation will need to be sensitive to the possibility that there could be a genuine reason for the absence (for example an accident or family emergency) and temper their attempts to make contact accordingly, particularly when dealing with an employee with a good attendance record. Employers should keep a record of all the attempts that they have made to contact the employee.

When the employee returns to work, the employer should have a conversation with him or her to discuss the situation and the reason for the absence. Effective use of open questions is a good way of discovering if there are any underlying problems at work or at home. An employee's absenteeism may be attributable to the fact that he or she is suffering from stress or is being bullied or harassed at work, which the employer will need to investigate further.

Unauthorised absence without good cause is a disciplinary offence and employers should implement their disciplinary procedure where appropriate. However, they should investigate the situation, and hear the employee's explanation, before taking formal action. Employers should take care not to make assumptions about employees who are absent without authorisation. Nor should they refuse to accept reasons given by employees for absence, unless those reasons can be disproven.

The appropriate level of disciplinary action 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 from an employee who has a prolonged period of absence without proper cause and who repeatedly fails to return the employer's calls. However, employers need to be consistent, fair and non-discriminatory in how they deal with unauthorised absence, or they risk a successful claim in an employment tribunal for unfair dismissal and/or unlawful discrimination.

To reduce their potential exposure to a successful tribunal claim, employers should seek to follow a fair procedure. Employers that are considering disciplinary action against an employee are advised to: provide the employee with details of the allegations 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; 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 disciplinary action.

Where an employee is absent for a prolonged period and fails to make contact or respond to the employer's attempts to contact him or her, the employer should still follow a fair procedure if any subsequent termination is to be lawful. This includes writing to the employee to warn him or her of potential disciplinary proceedings. If the employee continues to fail to contact the employer, it should write to him or her to set out the allegations and schedule a date for a disciplinary meeting. If there is still no contact from the employee, or an explanation for his or her absence, it may be appropriate for the employer to hold the meeting in the employee's absence.‪

Employers should ensure that they monitor absence levels and take appropriate action where necessary. Patterns of unexplained absences should be addressed as soon as they become evident.

Pay

There is no obligation on employers to pay employees their normal pay for periods of unauthorised absence without a good reason. Indeed, it is unusual for employees to be paid for periods during which they on unauthorised absence. Failure to pay in these circumstances would not normally amount to a breach of contract by the employer. Nor would it be an unlawful deduction from wages, because payment would not be "properly payable" to the employee (under s.13(3) of the Employment Rights Act 1996) in the first place.

Absence policies

Employers that adopt an absence policy making clear to employees how they intend to manage absence, including unauthorised absence, may experience lower absence levels than those that do not. If employees know that unauthorised absences will be investigated and may lead to disciplinary action, they are less likely to be absent without proper cause.

Next week's topic of the week article will be a case study on unauthorised absence and will be published on 17 January. A topic of the week series on the abolition of the default retirement age, planned for January 2011, will be published in future, subject to the timing of the Government's response to its recent consultation.

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.