Dismissal without notice letter (absent employee)

If, after a disciplinary hearing which is held in the employee’s absence, you take the decision to dismiss them because they’ve committed an act of gross misconduct, you will need our dismissal without
notice letter (absent employee). This dismisses the employee with immediate effect.

A trust and confidence breakdown

In the Dismissal without Notice Letter (Absent Employee) you should set out why the hearing was held in the employee’s absence, that the reason for dismissal is the employee’s gross misconduct, explain the nature of that gross misconduct and include a right for the employee to appeal against your decision. In the event of gross misconduct, you are not obliged to give the employee notice of termination of employment or to make a payment in lieu of notice. If the employee brings a claim for unfair dismissal, you will need to show both fair reason and fair procedure. This is particularly important because the employee will have lost their job for a first offence. While gross misconduct is a potentially fair reason for dismissal, you will still need to demonstrate to the satisfaction of the tribunal that you had an honest and genuine belief in the employee’s guilt which was held on reasonable grounds and after carrying out a proper investigation. It goes without saying that you must also have held a formal disciplinary hearing, even if the employee hasn’t turned up to it. Ensure you make careful notes of the hearing so the employee can understand why the dismissal decision was reached.

acas code of practice

A fair dismissal procedure should also comply with the Acas Code of Practice on Disciplinary and Grievance Procedures which provides that where an employee is persistently unable or unwilling to attend a disciplinary hearing without good cause, you can go ahead in their absence and make a decision on the evidence available. There are two main reasons for non-attendance:

1.       The employee is unwilling to attend, for example because they refuse to face up to the issue. In many cases, they won’t bother to let you know they’re not coming - they will just be a “no show”.

2.       The employee has been signed off sick and therefore says they’re unable to attend.

You’ll need to consider all the facts and come to a reasonable and fair decision on how to proceed, particularly as the outcome of the hearing could result in their dismissal. In the first scenario, it’s probably safe to postpone the hearing once and if the employee fails to turn up for a second time without a good reason, to then go ahead and hold the hearing in their absence. In the second notification of disciplinary hearing letter, you should, however, warn them that this will happen if they fail to attend again.

Ongoing sickness absence

A failure to attend a disciplinary hearing due to ongoing sickness is a more difficult scenario to deal with.  The starting point is to postpone the hearing until the employee is well enough to attend (see the Letter to Sick Employee Postponing a Disciplinary Hearing). Also consider obtaining a medical opinion on whether the employee is fit enough to attend (see the Letter to Doctor Seeking Advice on Whether Employee Fit to Attend a Disciplinary Hearing). However, if the employee’s absence becomes prolonged, you should contact them to discuss alternative ways of progressing the disciplinary process to a conclusion. You have to be prepared to postpone the hearing at least once or twice due to ill-health but eventually you should consider alternative options to enable the hearing to go ahead, such as holding it at the employee’s home, on neutral territory or by telephone, permitting the employee to send their statement to the allegations in writing, or permitting a representative to the hearing to act on their behalf (see the Letter Offering Options for a Disciplinary Hearing). Going ahead with a hearing in the employee’s absence due to sickness should be a last resort action, only taken when the above steps have failed. They should also be warned in advance that this is going to happen.