Employee not showing for work - fallout

[anthonyd923]

Hi guys, long story short. I've got an employee who has repeatedly failed to show for work.

He's worked with me for 14 months. Went away at Christmas for 3 weeks and then failed to come back to work. This lasted for 10 days. I had 1 or 2 texts from him, informing me he had an infection, but no update and little communication.

A few weeks ago this happened again. A text telling me he was sick and that he'd be in work late. He failed to show later that day and returned the next day.

Then then this week. He text me on Thursday morning saying he had the runs and he had to get off the tube on the way to work. I asked for an update later that day and got no response. He failed to show for work the next day and didn't communicate anything.

I then had a text from an ex-employee on Saturday, informing me that he was able for work, as this AWOL employee, had been in contact with him to tell him that he'd left my company.

I've fired the employee for gross misconduct. He's had a huge effect on the business, by repeatedly not turning up to work. I've informed him that his March salary will be withheld, to be used to pay for the damages caused by his inability to turn up for work.

Am I legally entitled to do this. I gave him repeated warnings (albeit verbally), and tried every way possible to contact him during these absences.

He's threatened me with legal action. I'd like to know which of us is in the correct legal position.

Thanks!

 

[Employment Law Clinic]

He's threatened me with legal action. I'd like to know which of us is in the correct legal position.

Hi Anthony,


Morally you’re in the correct position, but legally he is. At least from the details you’ve provided.


Of course you can fire him for misconduct (maybe even gross misconduct – so probably summary dismissal), but did you go through the formalities of a disciplinary procedure first? If not, you’re facing a wrongful dismissal, so probably liable for the week’s notice.


As for withholding pay, have you provided details of how this has been calculated? And does the contract allow you to charge for such damages by way of deductions from his pay?


While your approach may be morally right, he can take legal action. But whether he will is another thing entirely, so perhaps you can stand firm until he does take action, and then pay him. Or threaten counter action for the damages.



Karl Limpert

 

[billmccallum1957]

https://www.gov.uk/understanding-your-pay/deductions-from-your-pay

 

[soundengineeruk]

Part ways, learn from the experience and move on...

Sounds like more emotional knee jerk reaction than a reasonable business decision..

Do you want to fight something that you probably lose and cost more as reason to withhold his salary do not appear justifiable.

 

[anthonyd923]

Thanks guys for the all the responses. It is an emotional reaction. But, it has happened to me before that people don't turn up for work. I feel the need to make a stand and to protect my business. I only employ 7 people, and when 1 doesn't show for work it leaves me with huge issues.

In his absence I've had to pay for an agency Chef to come in and also he failed to leave any recipes for the food. This caused huge issues for me over the weekend, and reduced the quality of the food we were serving.

In his contract there are lines which state:

"Nothing in this Contract prevents us from terminating your employment summarily or otherwise in the event of any serious breach by you of the terms of your employment or in the event of any act or acts of gross misconduct by you."

and

"Deductions from your pay
Your Employer may deduct from your pay any amounts you owe it — including, for example:
1 any overpayment (including overpayment of holiday entitlement); 2 loans your Employer has made to you. 3 losses your Employer suffers as a result of your negligence or a breach of your duties."

Can I not class his actions as reason to terminate the contract? And also i have suffered losses as a result of his negligence, with not informing me of his whereabouts. Can I claim these losses back against the money I owe him for March so far?

 

[soundengineeruk]

3 losses your Employer suffers as a result of your negligence or a breach of your duties."

An employee cannot not really be held accountable for employer losses if the employer because the employee simply does not turn in.

 

[obscure]

Thanks guys for the all the responses. It is an emotional reaction. But, it has happened to me before that people don't turn up for work.

So you are basically seeking to punish this person for the misdeeds of others (as well as their own). That hardly seems fair.

Can I ask you what formal disciplinary steps you took when he first went AWOL (and on the subsequent occasion)?

 

[soundengineeruk]

So you are basically seeking to punish this person for the misdeeds of others (as well as their own). That hardly seems fair.

I agree, the question I would be asking is why employees are failing to turn up or leaving?

• Is it good place to work?
  • Is too restrictive or too flexible (i.e. open for abuse)
  • Nice working environment, even when all hands at the pump
• Is the salary/benefits competitive or least matching for same job somewhere else

He's worked with me for 14 months. Went away at Christmas for 3 weeks and then failed to come back to work. This lasted for 10 days. I had 1 or 2 texts from him, informing me he had an infection, but no update and little communication.

Sounds like more than a coincidence, so maybe worth trying to find out what in those 3 weeks you were away..

 

[paulears]

If an employee is critical to the business to the extent he or she has that clause in their contract, then would they not be a senior person, with detailed responsibilities and no doubt pay. I have this notion that you have perhaps a minimum wage person and are withholding his pay as punishment.

Even if that clause would hold up, how would you quantify your losses to a tribunal? What evidence of loss do you have?

 

[ethical PR]

You have to take some responsibility here. You should have got rid of him when he first started playing up. Instead you let him continue letting you down.

Then rather than seeking advice from and HR professional or following the right procedures you sacked him and withheld his wages.

Get some professional advice and learn for next time

 

[TotalWebSolutions]

Moving on. I would suggest that you introduce a more formal and stricter absence policy whereby they have to ring and leave a voicemail explaining the reason for their absence hopefully giving you more time to arrange cover (if the estimated length of absence and cause is indicated). Sending a text is too easy when they wake up and can't be bothered to turn in - as could be the case.

 

[Allan03]

Apply the company policy regarding absences and we also know we need to follow the rules for this like if the person can show some proof that we was sick for that long and fit to work documents etc.

 

[ChristineJoy33]

You have the right to fire him but first and foremost maybe it was just miscommunication between you two. Maybe you can be more considerate enough to your employees at times like this since you are not really sure if he is telling the truth or not. On the other hand, there are also rules and regulations that employees must follow and must always attend to their duties at all cost because they are obliged to do their works. Also, they need to file a leave ahead of time if there's an emergency and must have proper communication with their employer.