Dealing with AWOL employees

It is often difficult to know what to do when a decision has been made to dismiss an employee who has gone AWOL. You may have had a disciplinary letter returned undelivered or be aware from the employee's friends (or even Facebook page) that they have moved on. The message from a recent case is clear: an employer dismissing an AWOL employee must be proactive and take all appropriate steps to communicate that decision.

Although for contractual purposes an employment contract can be validly terminated by issuing written notice, the termination is only effective for statutory employment protection purposes (e.g. qualifying service and the time limit for bringing an unfair dismissal claim) if the employee reads the letter, or has had a reasonable opportunity to discover its contents. It is irrelevant when the dismissal letter was written, posted or delivered. So, what can an employer do when they find out that an employee is AWOL and has not received the letter?

Employers who cannot communicate with employees sometimes try to rely on the concept of implied termination, or "self dismissal", on the basis that repudiatory conduct by an employee (e.g. failing to keep in touch / failing to provide up to date contact details) terminates the contract itself without the need for the employer to do anything and without there being a dismissal. However, the EAT has decided that this is not a valid approach.

In Zulhayir v JJ Food Services Ltd UKEAT/0593/10/SM, Z was absent from work following an accident. When his sick notes stopped, his employer wrote to him stating that if it had not heard from him by 5 July 2006 it would 'conclude that you no longer wish to work for us and that you terminated your employment by your own volition'. Z had been evicted from his home and had failed to inform his employer of his new address. The letter was returned from the post office and no more attempts were made to contact Z, who only found out about the letter in May 2009 when it was referred to in a letter from the employer's solicitors sent to his new address in connection with his personal injury claim. When Z claimed unfair dismissal, his employer argued that it was time barred as his employment had terminated in July 2006. The EAT found that the claim had been brought in time as no effective steps were taken by either party to terminate the contract until the solicitor's letter in 2009.

In practice

Employers dismissing AWOL employees must be proactive. When communicating with an absent employee, post the letter in the usual way but also send it by recorded delivery or courier. If you then find out that the employee has not received the dismissal letter and do not have a forwarding address, communicate via the employee's solicitor if appropriate, or send the message by text or email (potentially finding the contact details via a social networking site). Although it is not best HR practice to use electronic means to communicate a disciplinary decision, it is effective.