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Martin Brewer

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Ask the expert: AWOL or Sickness?


This time the experts, Esther Smith and Martin Brewer give their advice on dealing with an employee who appears to be AWOL…

The question: AWOL or Sickness?

A member of staff has been off sick since beginning of October.
The last contact was via a "family friend" in mid November which was followed up with a letter from us requesting certificates in order to pay SSP.  We have not heard from the employee or family since then. They have not supplied any certificates for absence and are not entitled to company sick pay.

I am considering sending an AWOL letter requesting contact or assuming resignation if no reply within seven days.

Should I consider any other action before this? The employee has less than one year service.

Legal advice:

Martin Brewer, partner, Mills & Reeve

The only real issue here might be whether the employee in question is disabled within the meaning of the Equality Act 2010 since, if they are, they have the right not to be discriminated against because of that and you have to consider making reasonable adjustments (day one rights/obligations).

You can’t know whether they are or may be disabled since they have made no contact with you which means you have no idea why they are off, when they might return and if they do, whether they will be impaired in any way.

If you have not heard from them for several months why not just write to them, explain that you have dismissed them for failing to supply sick notes, failing to keep in contact and effectively being absent without leave. If you are feeling particularly conciliatory you could offer them a (time limited) right of appeal.

Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.


Esther Smith, partner, Thomas Eggar

Given that you have not received any sickness certificates authorising this employee’s absence by reason of sickness, then you are perfectly right to deal with this as an AWOL situation. I would use your letter to the employee to recount the situation so far, and the contact with the family friend etc. 

However, it might be sensible to try to contact the employee by telephone if you have not already done so, and also refer to this in your letter.

Whilst you are right to deal with this as an AWOL situation, it is quite difficult to “infer” an employee’s resignation. Generally speaking it is more usual to treat this as a gross misconduct allegation (the failure to attend work or carry out duties without authorisation is a fundamental breach of the employee’s obligations under his contract of employment) and invite the employee to a disciplinary hearing, telling them that failure to attend will result in the hearing being held in their absence.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.


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