Business Law & Compliance

Ghosting – where do you stand legally when your employee goes AWOL?

6 min read

10 April 2019

What happens when an employee simply doesn't turn up to work one day? As an employer, you have an obligation to ensure their safety at work, and even when they're not there, such as when you encounter an empty desk with no prior warning or notice. Although there might be a genuine reason for an unsolicited absence, there is a chance that the employee might have taken another job. In this case, you need to be armed with the right legal information to deal with the situation effectively.

Recent figures from jobs website CV-Library found that 2.8m workers or 10% have simply left their employer without any formal resignation or explanation given – a phenomena which has been dubbed “ghosting”. The problem is also occurring at the recruitment stage – in a survey of 600 UK recruiters, LinkedIn found that almost half had seen an increase in ‘ghosting’ since the beginning of 2018.

Your employee has gone rogue, now what?

The starting point is to always ensure that an employer has an up to date address and contact details of every employee, including their mobile number and their next of kin in the event of accidents. Make sure they also provide proof of address through a utility or mobile phone bill and put a clause in the contract requiring them to provide an up to date address if they move.

If employees do not turn up for work then there will be obvious concern and all reasonable attempts should be made to contact them. The employee could genuinely have had an accident or been taken ill. If needed, send someone around to their property to check they’re ok.

Historically, employers would write to employees in these circumstances and say that if they did not hear from them by a certain date then they were deemed to have resigned. However, case law made it clear to employers that this is not an effective termination of employment and employees must either actually resign or be dismissed to bring their employment to an end.

If the reasons are not genuine, act swiftly and decisively

Although there is no obligation to pay an employee who does not come to work, legally they will still continue to accrue holiday and potentially entitlement to commission or bonus, so it’s important to bring the employment to an end. Also, if the employee has been there for more than two years then any dismissal must be for a fair reason and procedurally fair to avoid an unfair dismissal claim.

Once it becomes clear that they are not unwell or injured, text and write to them and ask for an explanation as to where they are and point out they are absent without leave. If nothing is still heard, send a written invitation to a disciplinary hearing (with the usual right to be accompanied by a colleague or trade union official).

Make it clear that this is potential gross misconduct which could include dismissal without notice and that if they do not come to the meeting a decision will be made in their absence.

Assuming the ex-employee does not turn up to the meeting, issue a letter to their last known address and via email, and also text them to confirm that they have been dismissed without notice for gross misconduct and giving them the right of appeal. It is important to make sure they get this, as dismissal is only effective once the employee knows about it. However, if an employee then comes back and says, for instance, that they have been suffering from mental ill health and felt unable to make contact then it would usually be reasonable to reinstate them on appeal.

How to pen the letter for dismissal

The letter should also make it clear that dismissal for gross misconduct will be the reason given for leaving on any reference request and that they will not be paid for any period they have not worked and the employer will be requesting reimbursement of any overpayment.

Employees will often wait until payday before leaving knowing they have been paid for the whole month. Point out their contractual obligation to give notice and that they are in breach of this by not having done so.

If the employer has incurred the cost of more expensive temporary staff to cover the absence during what would have been the ex-employee’s notice period then they can seek reimbursement of this from the ex-employee as damages for breach of contract.

An employer cannot charge an ex-employee recruitment costs for their replacement because they might have left lawfully by giving notice and an employer would still have to pay these fees.

How to deal with an unscrupulous senior employee who is taking advantage

While you can not force an employee to work – that’s considered to be slavery, an employer can refuse to accept the employee’s breach of contract if they leave without notice. The employee then remains employed and cannot work elsewhere and the employer does not need to pay the employee if they do not come to work.

In practical terms, this means if a senior employee with a long notice period simply leaves then there is the potential to obtain an injunction to prevent him or her working for their new employer for the period of their notice. As ghosting moves from the world of dating to the world of business, knowing these legal and practical steps could save an SME from an unpleasant surprise at a later date.