no contact from employee

[missymoo]

I wonder if anyone can give us some advice please. We have an employee that has been with us almost a year. He called last Monday morning to say a relative was ill and he would not be in for a while but since then we have not heard a word from him, no phone calls, texts, emails or anything. I am going to call him tomorrow if we have not heard but I just wondered how we stand legally as although he is a nice guy he is very unproductive when he is here. How long would a period of non contact from him go on for before it would be classed as self dismissal?
Thank you

 

[kulture]

If he is unproductive, why have you waited so long to consider getting rid of him. Check how long he has actually been employed, add his notice period, and see how long the total is. If it is now over a year it will be much harder to sack him.

If it is under a year you can sack him for being unproductive.

If you have time left before the year is up, or if you have passed the year, then start disciplinary proceedings to see if you can improve his productivity, or if not then sack him. That said, make sure your procedures are legal. It would not hurt to check them with a professional before doing anything.

 

[KernowQueen]

i have to ask as you state "very unproductive when he is here", are you perhaps hoping this might be self-dismissal (if that exists?)? why haven't you dealt with his performance?

what do your contracts of employment state regarding absence?

there doesn't appear to be the usual employment bods about today, perhaps there's some useful here in the meantime.

 

[missymoo]

thank you for your input and yes you are right we really should have dealt with him being unproductive sooner. We are a small firm and only have 3 employees, 2 of which are quite new and this has really brought it home to us how slow the original guy is. The quality of his work is very good but what will take the other guys 1 month to do would take him 3 months which makes him non-viable. So the slowness of his work now coupled with him not contacting us for so long has made us really think.

 

[Public Advice]

An 'employee', has the right to unpaid time off work to deal with emergencies involving a 'dependant' – this could be thier husband, wife, partner, child, parent, or anyone living in thier household as a member of the family. A dependant may also be anyone who reasonably relies on them for help in an emergency, for example an elderly neighbour living alone who falls and breaks a leg and they are the closest on hand.


You should check your employees contract, written statement of employment or company handbook for details of the policy on time off for dependants and compassionate leave.


An emergency can be any unexpected or sudden problem involving someone who depends on your employee for help or care. The right to time off for dependants could apply to a wide range of different circumstances but I have puit a few examples below of some of the more common situations where they could be entitled to take time off:
If a dependant falls ill

In this situation the illness or injury doesn’t necessarily have to be serious or life-threatening, and may be mental or physical. The illness or injury could be a result of a deterioration of an existing condition for example, a dependant may be suffering from a nervous breakdown and may not need full-time care, but there could be occasions when their condition deteriorates and uour employee may need to take unexpected time off work. They could also take time off work to make longer term care arrangements for their dependant.
To deal with an unexpected disruption or breakdown of care arrangements for a dependant

For example, if a childminder or nurse fails to turn up as arranged, or the nursery or nursing home has to close unexpectedly.
To deal with the death of a dependant

When a dependant dies, they can take time off to make funeral arrangements, as well as to attend a funeral. If the funeral is overseas then they would need to agree a reasonable length of absence with you as the employer.


Your employee would be able to take time off regardless of their length of service. If they needed time off then they should have let you know as soon as they could, although they don't have to do it in writing or provide evidence.


If they return to work before they had the chance to tell you or you made no contact with them, they must still tell you why they were absent.


Your employee is allowed 'reasonable' time off to deal with the emergency and make any arrangements that are needed. There's no set amount of time allowed to deal with an unexpected event involving a dependant - it will vary depending on what the event is but for most cases one or two days should be sufficient to deal with the problem.


If they needed to be off for longer than a few days to deal with something, they should have contacted you to let you know why and how long they might need. Ideally giving you details of why they did not show up. You can explain that you have forms for such things which need to be filled out.
Good news here is that you dont have to pay him for time taken off but that’s your choice. You can check your company contract of employment form that your employee signed at the start to see if there's a policy about this.


It's unfair to refuse your employee reasonable time off to deal with an unexpected event involving a dependant. It's also unfair to dismiss or penalise them (eg not giving them promotion or training or the use of facilities they’d normally be offered).


If you dismiss your employee, or make them redundant or penalise them because of the right, or if you refuse them reasonable time off, they could complain to an Employment Tribunal.


Speak to ACAS who will be able to give you the best free advice as to how to deal witrh this situation. Alternatively there are two very good people on these sites that would be willing to help you for a fee. One is Karl on ‘The Employment Clinic’ or the other is ‘CCP Consultancy’. Both are very good. I hope this has helped in some way and good luck (And no - I dont work for either - lol; they wish.)



Josh
Public Advice

 

[ccp consultancy]

I wonder if anyone can give us some advice please. We have an employee that has been with us almost a year. He called last Monday morning to say a relative was ill and he would not be in for a while but since then we have not heard a word from him, no phone calls, texts, emails or anything. I am going to call him tomorrow if we have not heard but I just wondered how we stand legally as although he is a nice guy he is very unproductive when he is here. How long would a period of non contact from him go on for before it would be classed as self dismissal?
Thank you

Hi there - sorry to hear that you are having problems with your employee - unfortunately it would appear that you have fallen into the trap that many small business (and quite a few larger ones also) fall into, in that performance issues are left unmanaged, until it gets to the point where you have had enough and then just want the employee gone, which often means that the employee now has more than a years service, and to get rid of them will be more difficult and leave you with a risk of unfair dismissal.

You need to seperate the 2 issues

The most pressing one at the moment is the unauthorised absence.

The performance issue is a seperate matter that should be dealt with under seperate cover, or it will appear that you are dismissing on an opportunistic reason.

How close to the years service is he

With regards to the family emergency - he is allowed time off to deal with emergencies, IF they are dependants - a relative may not necessarily fall into the legal definition of a dependant. - ie husband, wife / civil partner, child , parent or someone who lives int he same house as you, but that is not an employee, lodger, border or tenant. A dependant [legal definition] covers non married partners, same sex partners and family members and friends that live together.

Legally the time off is only to deal with emergency, therefore any further leave should have been agreed with you, in the form of unpaid leave or holiday

I would advise that you write a letter to him asking him to contact you, in order that you can establish why he is absent - e.g. if he is sick (stressed) - then he needs to submit certificates from his GP.

Does he have an employment contract - if so is there a clause that deals with unauthorised absence?

If he does not contact you then you need to begin disciplinary action for non attendance, and this will ultimately mean you dismiss in his absence, paying any accrued holiday pay on leaving.

If he does return you will need to deal with his failure to contact you, and then commence performance management processes in relation to his poor performance at work.

If you need any assistance with the letters / processes that I have described above, please do not hesitate to contact me.

HTH

 

[MASSEY]

I know some companies that only allow one day off to the employee if a family member dies. I also know companies that class not phoning in to signal non attendance as gross misconduct.

What are your rules? you dont appear to have any?

 

[missymoo]

Thank you for all of the advice, and yes you are completely right in saying we have fallen into the trap of letting poor performance drift rather than dealing with it. Myself and my husband run the business and we are learning the hard way that you need to detach yourself from how you feel about things personally and manage it as business people.

With regards to the absence his Mother has had cancer which although they thought it was clearing she has taken a very bad turn for the worse and the hospital gave her 2 weeks to live about a week and a half ago. So although by the letter of the law it is not a dependent it is obviously a very difficult situation. As I said in the original post he contacted us last Monday (7th) to say he had spent the weekend back and forth to the hospital and wouldn't be in for a few days. We heard nothing at all for the rest of the week so yesterday afternoon I rang and left an answer phone message asking him to please contact us as we needed to know what was happening. Still we have heard nothing. It's really difficult because obviously under the circumstances we can understand his wanting to be at the hospital but equally we need to hear from him and we have dead lines and responsibilities to our customers who are not concerned with our staff's personal issues!

He does not have a written contract and started permanently with us on the 22nd March 2010.

Thanks all your help and advice is greatly appreciated

 

[KernowQueen]

very difficult circumstances, i would perhaps try to contact him again on Wednesday if you haven't heard anything back from him. unfortunately, in this instance, i think you're a little stuck as whatever you do, the timing will no doubt be 'wrong'. i'd definitely give a little more leeway on this one though, just my opinion obviously.

contracts - oh dear! have you at least provided a written statement of the main employment terms? i believe this should have been done within the first 2 months from start date. you need to get this sorted asap, for your benefit & your employees.

some basic info here (from the employee pov but still useful), also check out businesslink.

 

[ccp consultancy]

As he started with you on 22nd March, then you cannot safely dismiss him without going through a correct process, as the statutory one weeks notice period will take you over the years qualifying period for unfair dismissal.

I would follow up your phone call with a letter, (I would send a card with this letter) - if he has any outstanding holiday then maybe suggest that he take some holiday leave to cover the period of absence, as he will appreciate this on his return. At the end of the day this is his mother and there does need to be some lenience with regards to his leave.

If he still does not respond then try to phone him again, and then you may have to consider further action.

If he is on unpaid leave - do you have the opportunity to employ a temporary employee to cover his work in his absence, or is it a specialist field of work.

 

[LABJES]

Write him a polite letter and state your concerns and ask him to contact you within 48 hours to let you know what is happening. He's entitled to deal with family emergencies but also has a responsibility to keep his employer updated as regards his absence. Sad but true, business has to continue and you need to plan for the potential length of absence. You could also pop by and pay him a home visit if you are genuinly concerned regarding his personal problems!

 

[kulture]

I would pop in and see him. See what help he needs, agree a period of time off, and be sympathetic.

When he returns to work then you need to sit him down and deal with the separate issue regarding productivity. See if he can be more productive, can be trained or whatever to bring him up to standard. In your initial post you said he was a nice guy. So presumably he fits in and is otherwise trusted. So do not loose his loyalty and see if you can make him a productive and worthwhile employee. It would be far far better to come out of this with a good productive nice employee than a angry, embittered ex-employee who has lost both his mother and his job and then tries to take you to an employee tribunal.

The business comes first obviously, but you have to accept responsibility of letting this happen too.

 

[Employment Law Clinic]

there doesn't appear to be the usual employment bods about today

I've been kept busy dealing with employment tribunals & compromise agreements this week.

He does not have a written contract and started permanently with us on the 22nd March 2010.

You should sort this out for all your staff – statements of particulars (the bare bones of a contract) should be issued within two months of the employee starting.


The case is a delicate one, but to clarify the rules on time off for dependants, this is not carte blanche for employees to take time-off when a dependant (which the mother would appear to be under section 57A (3) of the Employment Rights Act 1996) is ill. The available time off is:

• to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted,
• to make arrangements for the provision of care for a dependant who is ill or injured,
• in consequence of the death of a dependant,
• because of the unexpected disruption or termination of arrangements for the care of a dependant, or
• to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him or her.

While perhaps harsh in practice, legally speaking the employee isn’t entitled to time-off to spend time with his mother. If the OP wanted to consider dismissal, it could be possible but the question that would invariably arise at a tribunal would be whether action to dismiss was a reasonable action for an employer to take. If the OP decided they did want to dismiss, I’m sure this could be justified, but caution would need to be taken on the handling of this.


Karl Limpert

 

[Paul Norman]

It is reasonable, and legal, to make contact to gain clarity as to the situation. Only then, armed with the facts, can you make the proper decision as to how to deal with the matter.

As to the performance issues, keep them seperate. It will be wise to deal with the need for absence first, and then the performance matters in a clear, fair, and decisive way. The employee has a right to know of your concerns to keep them opportunity to put matters right.

 

[Employment Law Clinic]

As to the performance issues, keep them seperate. It will be wise to deal with the need for absence first, and then the performance matters in a clear, fair, and decisive way. The employee has a right to know of your concerns to keep them opportunity to put matters right.

I would normally agree with keeping the issues separate, but if there is a weight of opinion to dismiss for gross misconduct – the employee has gone AWOL – and can therefore be done without notice (which is harsh, but feasible if Missymoo feels the need...), the performance issues could be considered to balance opinion on what action to take.

As I said in the original post he contacted us last Monday (7th) to say he had spent the weekend back and forth to the hospital and wouldn't be in for a few days. We heard nothing at all for the rest of the week so yesterday afternoon I rang and left an answer phone message asking him to please contact us as we needed to know what was happening. Still we have heard nothing.

Has there been any contact yet? There is no reason why he can't at least make a quick phone call.



Karl Limpert