When an employee fails to attend work without notification or a valid reason, this is often referred to as being absent without leave (AWOL). It can be a particularly challenging situation for employers, especially when there is uncertainty about the employee’s whereabouts or their intention to return. While employers have the right to manage the situation, it is essential to approach AWOL occurrences in line with employment law to ensure employee rights are preserved and potential legal risks are minimised.
Understanding what AWOL means
AWOL, or absent without leave, generally refers to an employee not turning up for work and failing to inform their employer. This absence may span a single day or extend for a more prolonged period. While some cases arise from misconduct or neglect of responsibilities, others may result from personal emergencies, mental health issues, or lack of understanding of company policies regarding leave.
Employers are encouraged to take a measured and lawful approach in dealing with employees considered AWOL. Missteps in addressing such absences can lead to employment tribunal claims if proper procedures are not followed, especially if the employee believes they have been treated unfairly or unlawfully dismissed.
Initial steps employers should take
When an employee goes AWOL, employers must first try to establish contact with the individual. Reaching out through phone calls, emails, or even written correspondence is a necessary and reasonable step. This not only demonstrates an employer’s attempt to resolve the issue informally but also forms part of a proper procedural record should action become necessary later on.
If no contact is made and the absence persists, the employer should initiate their internal disciplinary process. This will usually begin with an investigation to determine the facts behind the absence. It is important that any assumptions about wilful misconduct are avoided until the full circumstances are known. Employers must consider that the employee could be incapacitated or facing other significant challenges beyond their control.
The rights of employees who are AWOL
Employees retain specific rights, even when they are absent from work without permission. Dismissing an employee who has gone AWOL without following the correct procedures could result in claims of unfair dismissal, particularly if the employee has more than two years of continuous service.
In addition to potential unfair dismissal claims, employees may also have rights under the Equality Act 2010 if the absence is related to a protected characteristic, such as a mental health condition. This could trigger an obligation on the part of the employer to make reasonable adjustments or ensure non-discriminatory practices are followed.
AWOL employees are also entitled to a fair disciplinary process, and they must be given an opportunity to respond to any allegations or explain the reasons for their absence. Failure to do so may not only be procedurally unfair but could also undermine the credibility of any dismissal decision.
Managing AWOL in line with employment law
Employers should always refer to their staff handbook or employment contracts to identify the correct procedures for addressing unauthorised absence. Having a clear absence policy, which sets out the expectations around notification and sanctions for breaches, can significantly reduce ambiguity and strengthen the employer’s position in a disciplinary matter.
Before taking formal disciplinary action, employers must conduct an impartial investigation. If disciplinary proceedings are warranted, the employee should be given proper notice, informed of their rights (including the right to be accompanied at hearings), and allowed to present their case. Any decision to dismiss must be made based on thorough evidence and in proportion to the circumstances of the absence.
If the employee fails to respond or attend disciplinary hearings, employers may proceed in their absence, provided reasonable steps have been taken to allow participation. Nonetheless, caution must be exercised, and employers should ensure that all procedural safeguards remain in place throughout.
Absence due to illness or personal crisis
In situations where AWOL may be due to medical or psychological issues, employers should seek further clarification before proceeding with disciplinary action. An employee who is mentally unwell may not be capable of notifying their employer in the usual manner, and employers should be alert to signs that professional support or occupational health input may be needed before concluding misconduct has occurred.
In such cases, a supportive and non-punitive approach can be more appropriate. Employers should consider whether the absence may be linked to disability for the purposes of the Equality Act 2010 and whether a more flexible approach may be required as a reasonable adjustment.
Returning to work following AWOL
If the employee returns to work after an unexplained absence, employers should hold a return-to-work meeting to understand the reasons for the absence and consider whether any disciplinary action is still necessary. It may be that the employee had a valid reason but was unable to communicate due to extenuating circumstances.
Conducting a formal review before taking further steps allows both parties to clarify any misunderstandings and, where appropriate, move forward constructively. However, if the reason provided is deemed unsatisfactory or the employee has a pattern of unauthorised absences, disciplinary measures may still be justified under a fair process.
Legal advice for employers and individuals
From both an employer’s and employee’s standpoint, understanding AWOL employee rights is fundamental to navigating these challenging situations lawfully and fairly. Legal advice should be sought before taking any steps that could affect employment status, particularly where dismissal is being considered. Employment law can be complex, and each case must be evaluated on its own facts.
At Stephensons, we have extensive experience advising on AWOL matters, offering tailored guidance that protects both individual rights and employer responsibilities. Whether you are an employee seeking to understand your rights or an employer looking to manage a difficult absence case, professional input can help avoid costly mistakes.
Get in touch
Call Stephensons on 0161 696 6170 or fill in our enquiry form to speak to a member of our employment law team today.
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