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LC
BY Linda Clarkson
Employment law

Q: What is the position where an employee fails to attend work and the employer wishes to treat them as having resigned?

A: The employer really has two options in terms of terminating employment in this scenario, and the best approach will depend upon the precise circumstances of the employee's disappearance and the employer's attitude to risk.

Treat their actions as a resignation

As you may be aware, notice of termination should be clear and unambiguous. The fact that an employee repeatedly does not turn up for work does not, necessarily, amount to a resignation.

Nonetheless, some employers write to the employee stating that the employer has assumed that they have resigned by their actions and if this was not what was intended then the employee should get in touch within a specified time frame. This can, depending on the circumstances, be a pragmatic way of dealing with the situation, particularly if the employee does not have qualifying service for unfair dismissal and there is no risk of an automatically unfair dismissal claim, but it does leave it open to question who has terminated the contract and when, so it is not a risk-free solution.

Where the employee has qualifying service to bring an unfair dismissal claim, or where there is a risk of another type of claim which doesn't require qualifying service then it is a risky approach as a tribunal may well deem that the employer has dismissed the employee, and the dismissal is unfair due to the failure to follow an appropriate process.

Dismiss the employee

In some ways the safer option is to dismiss the employee following an appropriate disciplinary process, which may well be conducted in the employee's absence if they do not respond to correspondence. If the employer is taking this approach then they would need to conduct an appropriate investigation, invite the employee to a disciplinary hearing, reschedule that hearing if the employee does not turn up (as is required by the Acas Code), and then hold the reconvened meeting in their absence if they still do not attend. 

Some employers may regard this as excessive if the circumstances suggest that it is unlikely that the employee will come out of the woodwork at a later point and claim still to be employed or claim unfair dismissal. However, it has the advantage of rendering it more likely that the employer will be in a position to defend any subsequent unfair dismissal claim.

Pay

As you will know, an employer has an implied obligation to pay an employee wages where an employee is willing and able to perform the contract. In order to establish that an employee is not willing and able to perform (and that there is, therefore, no implied obligation to pay them), an employer should explore all possible avenues for contacting the employee to clarify whether there is an explanation for their absence (for example, sickness). If they are not contactable by phone or email, then it would be advisable to send a registered letter so that you are able to track whether or not it is signed and by whom.

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