What can I do if an employee goes AWOL?

Absence without leave, or AWOL, is when an employee leaves or does not show up for work without permission and without contacting their employer. Dealing with a no-show employee can be stressful for employers, and this article discusses what courses of action are available to them.

First steps

The first thing you should do if you have an AWOL employee is to try and make contact with them and determine the reason for their absence. Try not to jump to conclusions or assume the worst. Before moving straight to disciplinary action, give the employee a chance to explain themselves. They may be able to offer a reasonable explanation for their absence.  You don’t want to threaten them with dismissal and then find out that they are in hospital for example.

If your initial attempts to contact the employee are unsuccessful and their absence persists, you should continue to try and contact them, using various methods. Remind them in your later communications that they are not entitled to be paid for the time they are on unauthorised leave and that unauthorised absence is considered gross misconduct which may lead to their dismissal. You should also keep a record of all your attempts to communicate with the employee.  

Repudiatory breach

An employee’s unauthorised absence without explanation may amount to a repudiatory breach of the employment contract, but this is not always the case. To amount to a repudiatory breach the employee’s conduct must be wilful, sufficiently serious and must undermine the trust and confidence inherent in the employment relationship. Whether unauthorised absence meets this threshold will depend on the circumstance and may be a question for the Employment Tribunal.

Even if you believe that an employee’s unauthorised absence is serious enough to amount to a repudiatory breach, this does not bring the employment contract to an end automatically. The employment is terminated only once you have accepted the breach and communicated your acceptance to the employee. You could write to the employee notifying them that you accept their breach, but this notice may only be effective once the employee has seen the notice, unless their contract includes a deemed notice clause. This is an express clause which sets out when notice is deemed to have been given by various methods (see recommendations below).

Resignation

Some employers may interpret an employee’s unexplained absence from work as a resignation. However, treating unauthorised absence as a resignation can be risky where an employee has over two years’ service. In order to be effective, a resignation should be unambiguous. Both you and the employee should understand what is intended and what has taken place. Therefore, if you treat the employment as having been brought to an end, the employee may claim that they did not intend to resign and were actually dismissed. If the employee has more than two years’ service they may claim the dismissal was unfair because you did not follow a fair process. You may be able to mitigate this risk by writing to the employee and informing them that if they do not respond by a certain date you will have considered them to have resigned. However, there is still a chance that a tribunal will find the employee was dismissed.

If you do go to the Employment Tribunal, and the Tribunal finds the employee was unfairly dismissed, the amount of compensation awarded will likely be greatly reduced to reflect the employee’s conduct. However, you will still have spent time and money litigating a tribunal claim, which most employers would prefer to avoid.

A more cautious route when an employee has more than two years’ service is to dismiss the employee after carrying out a disciplinary process.

Dismissal

Dismissal is a potentially fair consequence to the employee going AWOL. However, for employees with over two years’ service, you will need to be able to show you acted reasonably. It may therefore be a good idea to go through your usual disciplinary procedures.

Write to the employee inviting them to a disciplinary hearing. The letter should include:

• the date, time and location of the hearing;
• the employee’s right to be accompanied;
• that the hearing will go ahead in the employee’s absence;
• an invitation to make written submissions;
• a deadline by which the employee must respond.

You should then proceed with your disciplinary procedure as you would if the employee was present. Conduct the hearing and consider all the evidence and any written submissions the employee may have made. If the employee has failed to attend the hearing and has failed to contact you about the hearing, you may make a decision in their absence. Keep the employee informed at every stage of the process as best you can and remind them of their right to appeal. If you have followed a fair process it is unlikely that the employee will later be able to claim they were unfairly dismissed.

Steps employers should take now

There are steps employers can take now to improve their position should an employee go AWOL.

1. Make sure your employees are aware of your absence reporting procedure and can easily access it.

2. Include unauthorised absence as an example of gross misconduct in your disciplinary policy.

3. Keep updated records of your employees’ contact details. You may consider sending an annual email to all employees asking them to confirm that the contact details you currently hold for them are up to date.

4. Include a deemed notice clause in your employment contracts. This clause states when notice is deemed to have been received (such as a specified number of days after posting to the employee’s last known address) and which methods of delivery are acceptable.

Our Employment Team can provide specific advice on how to manage an employee who has gone AWOL. We can also help you draft letters to employees inviting them to a disciplinary hearing, or informing them of a disciplinary decision. Contact our team by emailing employment@warnegoodman.co.uk or calling 023 8071 7717.