Unauthorised absence from work can have a significant impact on your business, both in financial and operational terms.
Given that these types of absence usually take place unexpectedly, it can be difficult to pre-empt or prevent this type of absence, or to make arrangements for temporary replacement staff to mitigate any disruption that might be caused to your business by a particular employee being off work, especially if you don’t know the reason for absence, or how long the absence is likely to last.
That said, it is important to understand the possible causes for unauthorised absence from work, not only to be able to help minimise this type of problem from arising in the first place, but also to decide how best to deal with this issue when faced with an employee who is absent from work without authorisation.
What is classed as unauthorised absence from work?
Unauthorised absence from work is when an employee fails to turn up for work without providing a valid reason, or without notifying their employer of their absence in accordance with the relevant workplace policy – usually the absence policy.
Being absent without permission, or absent without leave (AWOL), can also cover a scenario where an employee contacts their employer to explain their absence, but provides a reason for which they are not permitted under the terms and conditions of their employment contract to take time off from work, for example, an unplanned holiday or last-minute medical appointment. It can even cover absences where you don’t believe the excuse given by the employee.
There are various reasons justifying an employee’s absence that may constitute perfectly acceptable and permissible grounds for taking time off work including, for example, genuine sickness, to care for dependants in an emergency situation, following the loss of a loved one, or even as a result of poor weather conditions making it difficult or impossible to travel into work.
However, in many cases, not least where the employee’s absence is wholly unexpected, authorisation will need to be given retrospectively, for example, in the case of illness, a family emergency or bereavement. This means that any absence taken without advance notice can still be authorised, based on the sudden nature of the reason for the absence.
Dealing with unauthorised absence from work
In the event that an employee is absent from work, either without prior authorisation or any explanation, in the first instance reasonable attempts should be made to contact the employee to ascertain the reason for this. Any lack of contact from a usually reliable employee may indicate some sort of problem, rather than a wilful unauthorised absence.
You should endeavour to contact the employee via their mobile or landline, leaving a voicemail message where at all possible, and even trying any emergency contact number, which you should have on file. It is also good practice to express your concerns in writing via email or post, asking your employee to contact you at the earliest possible opportunity.
In circumstances where contact cannot be made with the employee during their absence, you should immediately discuss the absence with them on their return, not least because how you choose to deal with unauthorised absence from work will very much depend on what explanation is provided, both for the absence itself and for the employee’s failure to notify you.
You should always consider each and every situation of unauthorised absence on its own facts, where the circumstances may sometimes justify a more lenient and compassionate approach, for example, following the sudden death of a close relative or where the employee has been involved in a serious accident.
However, in the event that an employee is unable to offer a suitable explanation for their absence, or any lack of contact, you may need to consider conducting an investigation and taking formal disciplinary action against them. Unauthorised absence from work can be a misconduct offence, where most employers will cite AWOL on a non-exhaustive list of examples of misconduct offences under their disciplinary policy.
Can you dismiss an employee for unauthorised absence from work?
Unauthorised absence from work does not necessarily in itself constitute grounds to dismiss an employee. As indicated above, much will depend upon the facts of the case, including the length of any absence and any explanation as to why the employee in question has been off work.
There may be a number of valid reasons why an employee has been absent, although the failure to notify you of these during the course of their absence may warrant disciplinary action leading to the possibility of dismissal.
If you are considering dismissing an employee for an unauthorised absence from work or, alternatively, an employee’s failure to notify you of their absence, you must ensure that you undertake a full and fair investigation to establish the facts relating to their absence and/or any failure to notify.
Further, you must always follow a fair procedure, ensuring that any disciplinary action taken in response is reasonable and proportionate to any findings of misconduct following your investigation, otherwise run the risk of an aggrieved employee filing a tribunal claim against you for unfair dismissal.
In some cases, especially where an employee has been given a previous written warning for unauthorised absence from work, a decision to dismiss them may be justified. However, each case must be dealt with on its own facts, having regard to the seriousness of the misconduct and any previous disciplinary record.
Is unauthorised absence from work gross misconduct?
Although unauthorised absence from work is generally a misconduct offence, it is rare that being absent without leave, or failing to follow the correct protocol in notifying an employer of any absence, on its own will be classed as sufficiently serious to warrant summary dismissal.
In other words, unauthorised absence will not usually amount to gross misconduct. Typically, any unauthorised absence from work will be dealt with by a series of disciplinary warnings culminating in dismissal on notice, rather than summary dismissal without notice, or pay in lieu of notice.
In practice, there may be some circumstances where unauthorised absence from work may be sufficiently serious to be classed as gross misconduct, for example, where an employee has requested leave in advance and this has been refused, but the employee has taken the leave in any event. This could be treated not only as unauthorised leave, but also as insubordination that may justify a more serious disciplinary sanction than a mere warning.
That said, even in circumstances where you have made it clear that this type of misconduct may result in summary dismissal, you must still undertake a full and fair investigation before making any decision to dismiss. As such, you should avoid dismissing an employee “on the spot” for unauthorised absence from work.
Can an employee be dismissed while absent?
In circumstances where an employee has failed to attend work without explanation, and all attempts have been made to contact the employee over the course of a few days, including any emergency contact, you should send a hardcopy letter of concern via recorded delivery.
Assuming there is still no contact, at this stage it would be appropriate to invite the employee to a disciplinary hearing, with reasonable notice, to answer the allegation of unauthorised absence. This letter should set out the details of the absence so that the employee can answer the allegation against them, and explaining their right to have someone accompany them to the hearing.
If the employee then fails to attend the hearing, it would be advisable to reschedule, giving the employee one final opportunity to state their case. The letter inviting the employee to the rescheduled hearing should make it clear that a decision may be made in their absence if they do not attend on the next date.
In these unusual circumstances, it would be open to you to make a decision to dismiss the employee, although you would also need to advise the employee in writing of their right to appeal this decision.
Employee entitlement to pay for unauthorised absence from work
Each workplace will have different rules on what is regarded as acceptable reasons for absence and in what circumstances an employee will be entitled to receive payment for being absent from work.
In many cases, any entitlement to be paid for being off work will only be triggered once the employer has been notified of the reasons for the absence.
By way of example, where an employee is absent from work through sickness for 4 or more consecutive days, they may be entitled to statutory sick pay (SSP), or even contractual sick pay where you have an occupational sick pay scheme in place. However, to qualify, typically an employee must have notified their employer of their illness within any specified timeframe under the terms of their employment contract or, in any event, within 7 days.
There are also various other circumstances in which, as a matter of law, an employee may be entitled to take time off work, for example, to care for dependents. This will be determined by the terms of their contract of employment. Not all employees will be entitled to be paid while off, for example some workers should be paid while on statutory parental bereavement pay and leave.
The importance of an absence policy in managing unauthorised absence from work
By implementing a comprehensive, clear and fair absence policy, this can help you to explain to your employees, in advance, what is expected from them if they need to take time off. In this way, you can help to prevent unauthorised absence from work by setting out the basis upon which an employee is entitled to time off and how to notify you of when this happens.
In many cases, absences from work are unplanned and unexpected, so an employee will need to know exactly what to do to let you know, or have a reference point to refer back to. Any written policy can also provide examples of what constitutes unauthorised absence from work, as well as explaining the consequences of unauthorised absence, including dismissal.
In particular, the absence policy should include:
- How to report absences, including to whom and when
- When the employee needs to provide a sick note from their GP
- What amounts to an authorised absence
- What amounts to an unauthorised absence
- The possible disciplinary consequences of unauthorised absences
- How and when to keep in touch during any period of absence
- How much the employee will be paid and for how long
- When return-to-work discussions will be held and with whom
By systematically holding return-to-work interviews, this can help you to better establish the real reason for an employee’s absence and, in some cases, help to discourage employees from ‘pulling sickies’ or taking bogus days off if they know they will be directly asked about their absence on their return.
In addition, return-to-work interviews will also help you to offer an employee any necessary support where needed, for example, in the case of recurring illness, mental health problems or even problems at work.
With a view to minimising the problem of unauthorised absence from work, you may also want to consider any other workplace policies and procedures to support your employees during difficult times. This could include a separate compassionate leave policy, or a policy setting out an employee’s rights in relation to taking time off to care for dependents in an emergency situation.
Very often, by providing employees with the support that they need to address any personal or professional problems they may be facing, this, in itself, will lead to better engagement on their return – reducing the risk of further absenteeism.
Do you need assistance with unauthorised absence from work
DavidsonMorris’ HR specialists are on hand to advise on all aspects of workforce management, including guidance on developing absence management procedures and policies, absenteeism training for managers and advice on specific cases of unauthorised absence. We work closely with our employment law experts to provide a comprehensive service that brings together HR and personnel concerns while managing legal risk. For help and advice, contact us.
Unauthorised absence FAQs
What is unauthorised absence from work?
Absences are unauthorised if the worker does not inform their employee that they are off work or gives no reason for not being at work.
Is unauthorised absence a disciplinary matter?
If the employee is unable to give a good reason for their absence, the employer may consider conducting an investigation and taking disciplinary action.
Should the employer contact the employee during unauthorised absence?
The employer should try to contact the absent worker as soon as possible. If they are still unable to make contact, when the employee returns to work, the employer should discuss the absence with the employee.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
