Managing unauthorised leave of absence

Did you know that an unauthorised leave of absence could lead to disciplinary action or a misconduct claim for your employee?

But what should you do if you have an employee who has taken an unauthorised leave of absence? What happens if an employee has taken an excessive absence from the business?

In this article, we will take you through what an unauthorised leave of absence is and some of the common questions we get asked.

If you want more support in handling unauthorised absences, get in touch with one of our experts.

What is an unauthorised leave of absence?

An unauthorised absence is when an employee doesn't come to work without having a valid reason, or permission.

These absences are also referred to as absence without leave (AWOL).

Unauthorised absences aren't only limited to when an employee takes the whole day off work. It can refer to an employee being late to work without a valid reason, especially if it's a regular occurrence.

Depending on your company's absence policies, the unauthorised leave of absence could be unpaid leave. 

Employee sick policy

In your employee handbook, you should outline your sick policy. This will help employees report a sickness absence, and know what is required from them.

This should include;

1. How do they report an absence? Do they have to call, text, or email or can they leave you a social media message? 
2. Who do they need to contact to report an absence?
3. When do they need to let your business know they won't be in? For example, do you need to know before their shift starts or within a certain time period of their shift starting?
4. When do they think they'll be back at work? this will help you get a better understanding of how many days an employee will be off, and how long you'll need to arrange cover for.
5. You should tell your employee if you have any notification procedures you have. For example, if they need to tell you how they are on the fourth day of illness.
6. Evidence. As part of your company policies, you can ask for a doctor's note or another qualifying piece of evidence to prove their illness.

What doesn't count as an unauthorised absence?

There are certain circumstances that don't count as an unauthorised leave of absence. We've listed a few of them below.

Annual leave

Annual leave or holiday entitlement is the amount of paid time off an employee can take per year. The amount they can take should be outlined in your employment contract. The contract should also outline payment terms and state if they are only entitled to statutory holiday pay.

Sick leave

Sick leave is the time an employee can take off as sick days. Employees are entitled to statutory sick pay and can claim up to 28 weeks of SSP.

Maternity leave

Maternity leave is for employees who are pregnant or have recently given birth. They have the right to take time off to recuperate from birth, build a bond with the baby and care for it.

Paternity leave

Paternity leave is when an employee takes time off because their partner is having a baby, adopting, or having a baby through surrogacy.

Bereavement leave

As a recent edition to employment law, Statutory Parental bereavement leave entitles employees to have reasonable time off for dependents. Time off for dependants can also apply when a dependant dies to make arrangements.  

It's down to the employer's discretion whether this is paid leave or unpaid leave. Employees should be able to refer to a clear policy on bereavement or compassionate leave for their understanding.

Jury duty

Employers may find that an employee needs to attend jury service or to attend public duties. If an employee is called for jury duty, you need to allow them to take the leave. You can request that the employees delay their service, but this can only be delayed once in a 12-month period.

Carer's leave

This is where an employee needs to take time off to care for a family member or a loved one who has a long-term illness, although this hasn’t been written into law yet. 

Appointments

Employees can take time off for appointments if they've informed their employer first or if it's an emergency appointment. These could include hospital or doctor's appointments, dentist visits or antenatal appointments.

These types of leave will require permission in advance and you can pay employees for this time off - unless it's been agreed as unpaid leave. In some instances such as bereavement leave, or medical emergency, leave can be authorised on the day(s) the leave is necessary.

You should include in your employment contract what counts as an unauthorised leave of absence.

Unauthorised leave of absence procedure

If you find that you've got an employee who takes an unauthorised leave of absence, you should ensure you follow your company's procedures. This can often happen in the first two days of the absence.

On the first day of the leave of absence.

On the first day of absence, you should make a reasonable attempt at contacting your employee. Even though some managers may feel like it's not their responsibility to chase employees. You should remember that you have a duty of care to your employees.

You should try and make contact throughout the day and record all attempts. You can try and make contact by phone, email or in text/WhatsApp messages.

If after a few hours, you haven't been able to make contact, you should try and contact your employee's emergency contacts.

If you still haven't been able to make contact with the employee, you should write them a letter asking them to get in contact with you. This is often called a letter of concern.

When your employee does get back in contact with you, you can ask them for the reason for their absence. At this point, it's at the employer's discretion whether they want to take the unauthorised leave of absence forward to unauthorised absence disciplinary action in disciplinary hearings.

On the second day of leave of absence

On the second day of the employee's leave of absence, you should try and get in contact with them again. If you know that they live alone, it might be appropriate to arrange a well-being check.

Unauthorised leave of absence disciplinary process

As taking a leave of absence without permission is an act of misconduct, you need to ensure you approach it with your employee in the correct way. If you've followed the steps of your unauthorised leave of absence procedure, and still haven't been able to get in contact with them.

When can you invite them to a disciplinary hearing?

If you've followed the rules on unauthorised absence and followed the correct procedures, and still haven't been able to get in contact with them. You can invite them to a disciplinary hearing. Here they will be asked to give the reason for their absence, and then face any disciplinary actions.

You should send the invitation to the absent employee with as much notice as possible. In the invitation, you should include the reason for the meeting, and outline your attempts to contact your employee.

The invitation letter should be sent to the employee on a tracked delivery and emailed to them - if you have an email address on file for them. This will help minimise the chances of the employee claiming they didn't receive the letter.

When you conduct the employee's disciplinary hearing, it should be done in line with the company's disciplinary procedure.

What happens if the employee doesn't turn up?

If you find yourself in a situation where the employee hasn't turned up to the meeting, you should send out the invitation letter again with the rescheduled date. This new invitation should state that the meeting will go ahead without the employee if they fail to attend.

Remember that your employee has the statutory right to bring a witness to the disciplinary hearings, they could be someone from their trade union or a colleague.

Can I dismiss an employee for an unauthorised absence?

As an unauthorised leave of absence isn't an act of gross misconduct, it wouldn't be wise to dismiss an employee for this reason. Especially if this is an isolated instance.

If your employee has two years of service, and you dismissed them, they could put a claim against you for unfair dismissal.

If the employee has received warnings before about their absences, the multiple misconduct occurrences could make a strong case for dismissal.

How to prevent an unauthorised employee absence?

It can be difficult to prevent an employee from taking an unauthorised leave of absence, especially when it's around major sporting events or in the summertime.

Where you can, use an absence request form. Sometimes you may need to turn down the request.

As per the Working Time Regulations 1998, employers do have the right to decline holiday requests, but you should only decline a request if you have a valid reason to do so.

If you do find yourself having to decline an employee's annual leave, it's best that you do it in writing. Give your employee an apology, the reason for declining, and suggest an alternative time that they can take off. 

If there is pushback from an employee and you feel they make take an unauthorised absence, ensure that you provide them with a letter warning of the consequences for the unauthorised leave of absence and remind them that the absence will be classed as unpaid leave.

In this letter refer to your disciplinary policy and if necessary show your employee where they can find it.

Returning to work after a leave of absence

Within your absence policy, you should include what happens when an employee returns to work after a leave of absence. This is regardless of whether the leave is for paid parental leave, medical leave, or any kind of unpaid leave or paid leave.

When you have an employee returning to work, you can perform a return-to-work interview.

Return-to-work interviews aren't limited to only preventing absenteeism at work, but they go hand in hand with your duty of care towards your employees.

You can utilise a return to work interview to:

• Keep a record of individual health, and ensure the appropriate adjustments are made for them if needed.
• Keep records about any follow-up appointments or care the employee may need.
• Organise additional support for your employee, this can help avoid excessive absences.
• Make reasonable adjustments for the individual if they are going through a recovery process but are still fit for work. You can use the return to work interview to see if they need to take medication that will affect their performance or if it will affect their ability to drive to work.

Need help managing unauthorised leave of absence?

It can become difficult to manage an unauthorised leave of absence, particularly if you have a large number of employees. If you are unsure or want more information on how you can improve your absence policy, get in touch with one of the team.

Croner has a team of award-winning HR consultants who are specialists in their field. We've been helping businesses for over 80 years and our advice line is open 365 days a year, 24 hours a day. Why not speak to a Croner expert on  0800 470 2827