One of our common queries is what to do if an employee simply stops coming into work, and stops contacting us; this could be during a period of absence, or just simply ‘ghosting’ us,
In days gone by, employers might simply have deemed the employee to have resigned, despite the only indication being their non-attendance. This would involve sending a letter to the home address and stating that we deem them to have resigned, and ask them to contact us if that was not the case. This is not however acceptable, and not what we should do.
The first thing to consider is that, until the employer-employee relationship is ended, you as an employer have a duty of care. That’s one of those throw away statements that many of us use, but find hard to actually determine what it means.
In terms of statute, ACAS states:
Employers have a duty of care to their employees, which means that they should take all steps which are reasonably possible to ensure their health, safety and wellbeing.
If therefore someone simply stops turning up, then we have a duty to consider their well being. Of course, ethically, we have a broader consideration. Establishing the reasons why they have stopped attending could be important in determining how we deal with it, and therefore we should make best endeavours to contact them and try to find out the issues. Employees can on occasion lead fairly chaotic lifestyles – difficult and variable domestic arrangements for example – which can have a detrimental impact on them and their ability to attend work regularly. There could be a range of reasons why they are not attending, and some of those reasons could be reasons where they are afforded more flexibility in law, especially in issues related to their mental health or the health of people who they live with or care for. We should appreciate that someone who has, for example depression or anxiety may find It difficult to attend work; but they may also find it difficult to deal with the consequences of that, including keeping in touch,
So, a knee jerk reaction is not appropriate. If we act in haste, before we have made attempts to establish what is happening, we introduce risk.
That said, there is an explicit partnership in terms of the contract of employment; an employee attends and complies with the contractual requirements of their role, and in return we pay them and comply with our contractual requirements.
There are a range of terms which people in HR use within their working life which they rarely use elsewhere, and this is a good example – the employer must use ‘best endeavours’ to contact the employee. This means using any personal data we have to try to contact them – via their home address, any contact numbers or email that they have given us. Where there are genuine grounds to believe that the individual may be at risk of harm, you may consider it appropriate to contact the next of kin/emergency contact; it’s worth checking to see whether you specify when you might use that data and if it’s clear on the form that they gave you – you should consider it.
The aim is to ensure that, if we are to dismiss that we continue to apply the same principles – in terms of ACAS Code of Practice – that we would in all other circumstances; that means that we should seek to investigate the issue, and once we have done so, consider whether there is a case to answer; if there is we should arrange a hearing and deal with it. Being Absent Without Leave is probably contained in many disciplinary policies as potential misconduct or even gross misconduct.
What are ‘best endeavours’? Our advice would be to invite the employee to an investigation meeting on at least a couple of occasions, via whatever contact means we have; recorded and standard post, email if we know it is personal to them. Even a phone call or text to invite the employee to call us (without potentially revealing personal data where we can’t be sure that the employee is the only one with access) is acceptable.
In those letters we should be clear that attending is in their best interests, and that we do not want to be in the situation of making decisions without an appropriate investigation.
If they continue to ignore that, and we have taken all appropriate steps to establish their address, then we should arrange a disciplinary hearing and invite them, observing all the necessary formalities of a disciplinary invite; once again, if they don’t attend or make contact to explain their non attendance, we should invite again and then repeat on a third occasion. In all, we should be clear that if they do not attend or attempt to reschedule then we may take a decision in their absence; on the third no show, we would.
Even though the employee doesn’t attend, we should still convene a meeting and consider what evidence we have, and that meeting should be documented as evidence that we have, as far as we could, followed a fair process, and why the decision was reached.
Can we support you in dealing with issues like this? Call the ScotEng team on 0141 221 3181.
