Employee gone awol.

[justintime]

I run payroll for a client who had someone working for them. They went on long term sick until SSP ended. Employee was unable to return to work. This was a couple of years ago. About 6 months ago Client unsuccessfully tried to track down the employee so they could terminate the employment. I did advise they should get an employment specialist to get things wrapped up legally but they never did.

Long story short nothing was done and now the client is selling the business. (franchise) so not sure what to do regarding the situation. Personally I would just like to mark the employee has left and close the scheme from 31st July. Would this be ok (with the employers approval). I haven't been given any instruction by the client as yet.

 

[Mr D]

Get instructions from the client.

 

[Rebecca_J_T]

Hi @justintime . Obviously, you're awaiting instructions from your client, but if I were advising, I'd be advising them to follow a formal dismissal process. Otherwise, they could find themselves facing a successful unfair dismissal claim even in spite of the employee being AWOL for so long.

If I were the client, I'd be writing to the employee to highlight their period of absence without leave and inviting them to a meeting to discuss this as a matter of gross misconduct, the outcome of which might be dismissal. (If there's a need to consult on the sale, it may be worth mentioning that too.) I'd give the employee a reasonable period of time to respond, but if no response, I think it would be reasonable to dismiss. At that point, the employee could come off of the business' books.

 

[Chris Ashdown]

Hi @justintime . Obviously, you're awaiting instructions from your client, but if I were advising, I'd be advising them to follow a formal dismissal process. Otherwise, they could find themselves facing a successful unfair dismissal claim even in spite of the employee being AWOL for so long.

If I were the client, I'd be writing to the employee to highlight their period of absence without leave and inviting them to a meeting to discuss this as a matter of gross misconduct, the outcome of which might be dismissal. (If there's a need to consult on the sale, it may be worth mentioning that too.) I'd give the employee a reasonable period of time to respond, but if no response, I think it would be reasonable to dismiss. At that point, the employee could come off of the business' books.

Interested to know on what grounds you consider the missing person could make a unfair dismissal claim

 

[NicoJ]

Interested to know on what grounds you consider the missing person could make a unfair dismissal claim

Probably on the grounds that they haven't followed the correct procedure for dismissal. I'd hazard a guess that the employee believes they are no longer employed but that doesn't excuse not following up for so long (on both sides).

 

[Rebecca_J_T]

Interested to know on what grounds you consider the missing person could make a unfair dismissal claim

Exactly as @NicoJ says - purely on the premise of the employer not having followed a fair dismissal procedure. It seems a bit perverse, I’ll accept, but believe that is how the law would see it!

 

[Chris Ashdown]

So its reasonable for someone to take a two year or more unauthorised holiday without contacting the company, by just not turning up for work and expect their job to be available

Do either of you have any case histories of this happening

 

[NicoJ]

So its reasonable for someone to take a two year or more unauthorised holiday without contacting the company, by just not turning up for work and expect their job to be available

Do either of you have any case histories of this happening

They haven't taken a "holiday", they were off sick with a long term illness. The point is that the employer has not followed the correct procedure to dismiss the employee (nor it seems has contacted the employee about their welfare in a considerable amount of time). They are therefore leaving themselves open to legal proceedings.

Not saying it will happen, in fact I'd be fairly certain that the employee no longer considers themselves employed, and I'm not saying it's fair or logical but these are the facts.

To the OP, no I wouldn't just P45 them.

 

[Mr D]

They haven't taken a "holiday", they were off sick with a long term illness. The point is that the employer has not followed the correct procedure to dismiss the employee (nor it seems has contacted the employee about their welfare in a considerable amount of time). They are therefore leaving themselves open to legal proceedings.

Not saying it will happen, in fact I'd be fairly certain that the employee no longer considers themselves employed, and I'm not saying it's fair or logical but these are the facts.

To the OP, no I wouldn't just P45 them.

I was off sick long term once.
Fair play to the employer they kept in touch and did home visits 10 miles from work eventually as it was difficult to get to the office.
Eventually I just resigned after 2 years - and they paid outstanding holiday pay.
Can fault that employer for many things, cannot fault them on phone calls and personal visits from HR.

 

[Rebecca_J_T]

So its reasonable for someone to take a two year or more unauthorised holiday without contacting the company, by just not turning up for work and expect their job to be available

Do either of you have any case histories of this happening

I haven’t supported a tribunal case around this myself, but there are certainly cases you could draw precedent from (e.g., Brighton & Sussex University Hospitals NHS Trust v (1) Akinwunmi (2) Norris & 4 Or; Zulhayir v JJ Food Service LtD; London Transport Executive v Clarke).

I mean, I totally see that as the employer in the situation, such a period of AWOL would likely lead you to feel like the contract had been frustrated, but Tribunals just don’t like that argument as a get around to applying what they’d see as a relatively easy fair dismissal process.

 

[justintime]

Sincere apologies for not coming back to this thread. The employer did manage to contact the employee in the end and they are being tuped to the new franchisee.

In answer to the comments made, much of the blame lies with the employer for not following proper procedures when it was obvious the employee couldn't return to work when SSP expired.

 

[simon field]

Blimey, so someone else has to dismiss an employee they’ve never met!

That’s funny

 

[Chris Ashdown]

Me i think they just opened up their own can of worms when there was no need, bet they now claim hildiday pay for the last few years and redundancy

 

[Rebecca_J_T]

Have to agree. It's so often the case sadly that employers don't understand the importance of sound processes (particularly HR processes, I find, but maybe I'm biased!) until a problem arises.