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Ask the expert: Employee AWOL


Ask the expert

What options does an employer have when one of their employees is absent without leave and has made no contact at all? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.

The question:

We have an employee who recently underwent disciplinary action, was issued with a final written warning, and subsequently went on sick leave.

The employee in question followed the correct self-certification procedure but has not been heard from since (almost a week now). He has in the past refused to give personal contact details (we have an old address on file and no contact number) so we cannot get hold of him to find out where he is.

We have tried to contact him on his work number and left several messages, however he has not responded. I understand we have to wait a couple of days for a sick note to come through, but legally we are not sure where we stand on this as our HR was previously outsourced.

Also, does this employee have a legal obligation to offer correct contact details?

Legal advice:

Esther Smith, partner, Thomas Eggar

You can discipline this employee for his unauthorised absence. Given that you have not received a doctor’s certificate for his period of absence, and his ability to self-certify has expired given the time he has been off, he is currently absent without authority and that is a disciplinary offence.

I suggest you write to him at the last address you have been given and arrange a disciplinary hearing as a result of his absence. Notify him in this letter that if he fails to attend you will still hold the hearing without him.

Given that he is on a final written warning, any further disciplinary action will result in a dismissal but even if he had a clear record, you may be justified in dismissing him for this absence alone.

Assuming he does not turn up, hold the hearing, make a decision to dismiss and confirm this to him in writing together with confirmation of his right of appeal. Hopefully you will not hear from him again.

Alternatively if he gets in touch, and depending on what he says and whether he produces a medical report, you may still decide to discipline him for failure to notify you of his absence / whereabouts etc. Given the final written warning on file he could still be looking at dismissal even if he does make contact.

In terms of payment, I would only pay him sick pay (if he is entitled) for the period for which he is able to self certify his absence, and nothing beyond that. We cannot assume he is sick or process SSP for this period, as we do not have a certificate from him.

In terms of the contact details, there is not really a technical legal requirement for the employee to provide contact details but it is perfectly legitimate for the employer to request them, and given that this request is reasonable, the failure to provide up-to-date contact details could in itself amount to a potential disciplinary case for failure to carry out a reasonable management instruction.

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

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Martin Brewer, partner and employment law specialist, Mills & Reeve

Curiously there’s no legal requirement for an employee to give you his contact details but it’s very unusual. I think you would have a reasonable shot at arguing that the failure to provide up-to-date contact details amounts to a breach of trust and confidence but you should at least give this employee an opportunity to set the record straight (and in any event you would have to follow a dismissal process).

So, when he returns you must demand up-to-date contact details. If he refuses to give them, set up a disciplinary meeting based on a breach of trust and confidence and take it forward from there.

In the meantime, there’s simply not much you can do about the sickness absence. If it is certified then you should simply apply your sickness absence policy. If the absence is uncertified then the employee is on unauthorised absence and you could add this to the trust and confidence issue set out above.

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

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