15th January 2020

Legal Issues – AWOL

One of issues that we’re often asked to advise on, is what to do when an employee goes Absent Without Leave ( AWOL).

An employee may just go off the radar, might be absent but not responding to phone, email or text messages and may not be keeping in touch with trusted colleagues.

There are generally a number of different approaches adopted by employers when an employee goes AWOL.

We highlight the pros and cons of each approach.

Sometimes employers will assume the employee has resigned. This is dangerous for a number of reasons. Resignations should be unambiguous, and generally given in writing so there is no doubt about the employee’s intentions.

Employers will sometimes write to an AWOL employee saying:

  1. you’ve not been at work for a significant period of time;
  2. we’ve tried to contact you;
  3. unless you respond to this letter by  X date, we’ll assume you’ve resigned.

Surely this is safe?

The short answer is no. If the employee doesn’t respond, and the employer then sends a further letter confirming the employment relationship has come to an end, this is a dismissal – and because no dismissal procedure has been followed, there is the risk of a claim for unfair dismissal.

If the employee has less than 2 years’ service, the risk of such a claim is probably low; if more than 2 years’ service then there is likely to be a finding in the employee’s favour. BUT tread very carefully if you believe the employee has a medical condition that could amount to a disability, when there is a duty under the Equality Act 2010 to make reasonable adjustments. Terminating employment in this way, could also result in a claim for disability discrimination – and the employee could bring that claim regardless of length of service.

Frustration of contract. This is essentially an ‘automatic’ termination of the employment contract. There is no dismissal, so no risk of a claim for unfair dismissal. However, what has to be established is that neither the employer nor the employee anticipated the circumstances, and neither party is responsible for them. Basically – the situation has changed so much from what was envisaged, that the employment relationship can’t continue.

In our experience courts and Tribunals DO NOT like frustration arguments. It’s an argument that is unlikely to succeed, and should therefore be avoided.

So-called ‘self-dismissal’. This is a situation where the employee repudiates the employment contract i.e he or she wilfully disobeys and deliberately flouts the contract. It is unsafe to assume self-dismissal in those circumstances. It is very similar to scenario 1 (above) and shouldn’t be relied on.

This is because in nearly all cases the employer will write to the employee confirming that they accept the employee’s repudiation of the contract, have assumed the employee has dismissed himself, and confirm the employment relationship is at an end. That amounts to a dismissal and again, runs the risk of a claim(s).

Go through a dismissal procedure. This is on the basis that the employer has tried and tried to contact the employee, to no avail. The employee is then invited to a formal disciplinary hearing, with the right to be accompanied.

The invitation should specify that if the employee doesn’t turn up, the hearing will go ahead in their absence. The employee should be given the chance to submit written submissions as an alternative. Whatever sanction is imposed, a right of appeal must be given.

This is by far the least risky strategy. The employer is in control, and it mitigates against the risk of a claim for unfair dismissal.

It perhaps goes without saying that when trying to contact an AWOL employee, all communications should be sent recorded delivery. A paper trail of attempts made to contact the employee and dates and times of phone calls, should be retained as evidence for the disciplinary hearing.

This ‘Legal Issues’ briefing is not a substitute for specific advice. Please do get in touch if you wish to know more.

15th January 2020