What can an employer do about an employee who has not turned up for work on numerous occasions? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
An employee has not turned up for work at least 10 times, perhaps more. Is there a disciplinary procedure that should be followed, or can the employee be dismissed for this reason?
Legal advice:
Esther Smith, partner, Thomas Eggar
The answer really depends on how long the employee has been with you and whether these 10 ‘no shows’ are in one block or scattered. If the employee has less than one year’s service you could just dismiss on notice in accordance with his contract as a result of the failures to turn up. The only possible issue that could arise here would be if the reason for the absences was in some way related to a medical condition that was covered by the Disability Discrimination Act, but nothing you say suggests that this is the case.
If the employee has over a year’s service then you can potentially dismiss for this issue but you would need to go through the appropriate disciplinary procedure before getting to this stage. If the employee has a clean disciplinary record, and the absences are not all in one block, then you really ought to start the process at the beginning with a verbal or first warning, and then continue to escalate the warnings up the scale through the disciplinary procedure, which if the absences continue may culminate in dismissal on notice.
If the absences are all in one block and you effectively have not seen this employee for 10 working days then dismissal may be the outcome as a result of the employee’s fundamental breach of contract (failure to turn up and work) but you would still need to go through the disciplinary procedure.
If the employee does not turn up at the hearing you could hear it in their absence, which should make the decision easier, and then write and confirm the outcome and their right of appeal.
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
Absenteeism can be a reason to dismiss an employee. You need to investigate the reason for the absence, and be sure of the amount of absence (I’m a bit alarmed by the “or more” comment you make – don’t you know?) as that will affect what process you follow and the potential outcomes.
For example, if the employee just isn’t turning up and gives no good reason, this looks like misconduct and you can use your disciplinary procedure to dismiss. But if the reason for the absence is illness you will need to explore that further; possibly you will need a medical report and to consider if the employee is disabled.
Dismissal for ill health reasons should be implemented only if you are clear that the business cannot tolerate the particular level of absenteeism. Dismissal here would be on the ground of ‘capability’ and you will need to consider whether the employee should be given an opportunity to improve their attendance record before dismissal. This is particularly important if the employee is disabled but this is a complex area of law and you should seek detailed advice.
You must, in any event, follow a fair procedure when dismissing and, as a minimum, that procedure should follow the statutory dismissal procedure as anyone with over one years’ service can claim unfair dismissal and failure to follow this process will make the dismissal automatically unfair.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.
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