When absence goes AWOL
An Indian Civil Servant hit the headlines recently for finally being dismissed after failing to turn up for work for 25 years.
An Indian Civil Servant hit the headlines recently for finally being dismissed after failing to turn up for work for 25 years. Mr Verma had been employed as an Executive engineer at the Central Public Works Department in India. He left his shift in 1990 and never returned. Whilst his employer did eventually consider him as wilfully absent in 1992, it only got around to terminating his employment some 22 years later.
Such cases are extreme examples of failure to deal with absence, particularly unauthorised absence or 'absence without leave' (AWOL). Whereas the rules governing Civil Servants in India may differ from those applying to most UK employers, Mr Verma’s case highlights how you should be proactive when dealing with an employee who does not turn up to work.
Firstly, you need to try to establish contact with the employee once they have gone AWOL. Avoid text messages; a telephone call to the employee or their next of kin is good practice. Most employers will find it useful to follow up any initial contact with a letter asking the employee to confirm their whereabouts and to get in touch.
How you then deal with the employee’s AWOL will also depend on whether you have a policy or procedure in place which covers this issue. Robust guidance detailing how managers should deal with employees who go AWOL can be helpful. Your policies should deal with how absence should be reported to ensure employees are clear as to how and when their absence should be communicated (e.g. before the shift they are unable to attend).
Give an employee a reasonable period to get in touch. However, if they do not, AWOL is a misconduct issue. Therefore an employer is entitled to instigate conduct proceedings in line with their disciplinary rules. Proceed to invite the employee into a disciplinary meeting and then look to dismiss the employee if you feel this is reasonable and appropriate. It is not uncommon, and will usually be reasonable, for employers to regard AWOL as gross misconduct, warranting summary dismissal. However, as always, every case depends on its own facts. You could also consider providing a further period for contact before a decision is implemented, as an additional fair step before dismissal occurs.
Unfortunately, for HR professionals, circumstances are often not so straightforward. For example:
- An employee may eventually turn up to work. That said, a prompt investigation as to the reason for their absence and their failure to report their absence should be undertaken. Given the seriousness of AWOL, suspension of the employee may be appropriate whilst the investigation is concluded and before any disciplinary hearing.
- Like Mr Verma, an employee may get in touch during the absence but simply refuse to come to work, despite management instruction to attend for duties. That then raises the issue of failing to follow a reasonable management instruction, which in itself is a disciplinary issue. Following warnings, dismissal may well be fair.
- An employee may eventually submit a sick note covering their continued absence. This can be problematic for employers as this then primarily becomes a sickness absence management issue (capability), rather than conduct (and dismissal for the slow reporting is highly unlikely to be fair). Managing that absence through regular contact with the employee and expert occupational health (or other) medical evidence may be the best route to make management decisions about whether the employee is capable of providing effective service in future. Alarm bells should ring where a serious condition is disclosed on a GP Fit Note or when repeated Fit Notes are presented, resulting in a long period of absence for a particular medical condition. If the employee potentially has a disability, the duty will be triggered to make those all important reasonable adjustments to policies and processes to accommodate them.
It is easy to forget about the AWOL employee when they have simply ‘disappeared’. These types of employees are often regarded as “dormant” employees as they are still on your books, until you take steps to remove them. As discussed, a proper process is needed before you dismiss the employee, otherwise an unfair dismissal claim is likely to succeed no matter how little contact you have had from the employee.
A final thought: the longer you leave it, the greater the employee’s length of service. A Tribunal will always take into account length of service when considering the reasonableness of a dismissal and, more dangerously, a recent recruit may cross the two year continuous service threshold enabling them to bring an unfair dismissal claim. Other contractual benefits may also continue to accrue. Prompt and decisive action is essential.
Bhavesh Prajapati is an Associate based in our Birmingham office. If you are currently struggling with a long term absence case please contact Bhavesh on (email@example.com) or speak to your usual Weightmans’ contact.