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Unauthorised Absence

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Unauthorised Absence Overview

When is Absence Unauthorised?

Unauthorised absence, often referred to a absence without leave or AWOL, occurs when an employee fails to attend work without either (i) the absence being authorised or (ii) the absence being genuine sickness absence (and in compliance with any requirements for reporting and evidence under a Sickness Absence Policy).

Management can authorise absence in a wide variety of situations including family related leave, compassionate leave, jury service, public duties and career breaks. It is also possible to use management discretion to grant leave on an ad hoc basis as special leave, caution should be exercised to avoid creating any entitlement to such leave upon future similar requests by custom and practice. Authorisation would usually be given in advance of the leave being taken but it is possible to retrospectively authorise an employee’s absence, for example in emergency situations or a sudden bereavement. See the Authorised Absence Section for further information on authorised absence.

Disciplinary Action

Unauthorised absence is a clear misconduct offence. Most employers would specifically list unauthorised absence or absence without leave on a non-exhaustive list of examples of misconduct offences under their disciplinary policy. A specific reference to an offence being classed as misconduct is always helpful as it provides fair warning to employees and also assists with consistency.

It is rare to class unauthorised absence as a gross misconduct offence, this would not generally be recommended. The expectation would be that unauthorised absence should usually be dealt with by a series of disciplinary warnings culminating in dismissal on notice. This is particularly important in respect of employees with more than two years continuous employment or who have protected characteristics which could result in Tribunal claims. However, some cases of unauthorised absence may be sufficiently serious to be classified as gross misconduct, for example where an employee has requested leave and this has been legitimately refused yet the employee has taken it anyway. In this scenario the absence would be unauthorised but also the offence would amount to potential insubordination and therefore may justify more serious disciplinary action.

Employers should consider each situation of unauthorised absence on its own facts. Employees will often have an excuse for their failure to attend work. Confusion about shifts or working days may not be seen as a justifiable reason but a sudden death of a family member or the employee being involved in a serious accident would normally be sufficient to justify the immediate aftermath absence.

Unauthorised Absence Procedure

The below steps are a suggested procedure to be followed when an employee fails to attend work. Care should be taken to comply with your own policies and procedures (including Disciplinary Policy) and each case should be taken on its own facts.

First Day of Absence

When an employee fails to attend work without prior authorisation and without reporting their sickness absence reasonable attempts should be made to contact them.

Periodic attempts at contact can be made throughout the day including telephone calls to their home number and mobile, e-mails and text messages. Make a detailed record of the attempts that have been made to contact the employee including times of calls and any voicemail messages left for them.

If you have details of an emergency contact for the employee you can attempt to contact them to explain that the employee has not attended work and ask them to request that the employee make contact.

It is good practice to write to the employee expressing concern regarding their absence, explaining that it is unauthorised and asking that they contact you. This is known as a letter of concern and can be sent by post and/or e-mail.

If the employee returns to work or makes contact to explain their absence consider whether to refer to disciplinary hearing in respect of the unauthorised absence to date (even if only one day).

Second Day of Absence

If the employee fails to attend again then the periodic attempts at contact should be resumed. If the employee lives alone it may be appropriate to arrange a home visit to check on their welfare.

Assuming there is no contact or relevant information received by the end of the second day it would be reasonable to invite the employee to a disciplinary hearing (with sufficient notice) to answer the allegation of unauthorised absence. Full details of the absence dates and attempts made to contact the employee should be included within the letter.

The letter could be sent by first class post or recorded delivery and if the employee has an e-mail account a copy can also be sent by e-mail to minimise the risk of the employee claiming that they did not receive the letter. Employers should remember that it is important to be able to provide evidence of the fact that the employee has received the letter if the employee attempts to dispute this. A letter sent by first class post will be deemed to be received 2 working days after posting but there is no way of proving that it has actually been received. On the other hand, a method of delivery which requires signature on receipt is better evidence but employees may not be at the address or may refuse to sign and therefore the delivery will not take place and first class post-delivery or another method such as hand-delivery will then need to be attempted.

Disciplinary Hearing

If the employee attends then the hearing should be conducted in accordance with the normal disciplinary procedure (See Disciplinary and Misconduct Overview [FS5.01], Managing Disciplinary Issues [FS5.02] and Disciplinary Policy [P5.01]).

If the employee does not attend and there has still been no contact or information received then it would be prudent to reschedule the meeting and give the employee one further opportunity to attend. The letter inviting the employee to the rescheduled hearing should make it clear that the hearing will be conducted in the employees absence if they do not attend on the date scheduled and a decision may be made in their absence.

If a disciplinary sanction (for example a written warning) is imposed the employee should be given the right to appeal in accordance with the usual Disciplinary Policy.

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.