Absent without official leave (AWOL) is when an employee leaves or they do not show up for work without the employer's permission, and without contacting the employer to make them aware.
This situation can be difficult and stressful for employers, but this article explores the courses of action you can take as an employer to resolve the situation.
The First Step
First things first, attempt to contact the employee to find out why they are absent. It’s always best to give your employee the opportunity to explain their situation before moving to disciplinary action. For example, you don’t want to frighten them with the idea of dismissal when they could be grieving a family member or in the hospital unexpectedly.
To add to that, if your first contact attempt fails, then always try to contact them through several different methods, giving them a reasonable opportunity to get back in touch, and keeping a record of all of these attempts.
This is when you are entitled to remind them 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.
Repudiatory Breach of Contract
A repudiatory breach of contract is when the innocent party has the right to treat the contract as being disregarded and entitling them to refuse to be bound by its terms.
In most cases, an employee’s absence without explanation could amount to a repudiatory breach, but it’s vital to know that this is not always the case. In order for it to amount to a breach, the employee's actions must be sufficiently serious enough.
Whether unauthorised absence meets this guideline will depend on the circumstances and could be a question for the Employment Tribunal. If you wish to notify your employee that they have breached their contract, you should write to them.
Be aware that this does not end the employment contract automatically. The employment is terminated only once you have accepted the breach and communicated your acceptance to the employee.
You may wish to interpret your employee’s absence as a resignation, which could save a lot of time and stress going through the process of dismissal. This may however be a risk if the employee has been with you for longer than two years because they could claim you dismissed them unfairly.
To easily avoid this risk, you should write to the employee to inform them that if they do not respond by a particular date you will have considered them to have resigned.
A far more cautious route to take when an employee has more than two years of service with you is to dismiss the employee after carrying out a disciplinary process.
A fair consequence of an employee going AWOL, after following the correct procedure to find out why they are absent, is to dismiss them. For employees who have worked for you for over two years, you must justify that you have acted reasonably.
In this case, you should write to the employee inviting them to a disciplinary hearing, including all of the relevant information they need. Even if the employee doesn't show up for the hearing, you should conduct the hearing accordingly, proceeding with your disciplinary procedure as you would if they were present.
If you follow a fair process it is unlikely that the employee will later be able to claim they were unfairly dismissed.
Planning for the Future
Get prepared now for any future AWOLs by taking the following steps.
- Make your employees aware of your absence reporting procedure, and grant them easy access to it.
- Ensure to include unauthorised absence as an example of gross misconduct in your disciplinary policy.
- Keep your records up to date on employees' contact details
- In your employment contracts, always include a deemed notice clause.