Dismissal for absenteeism

An employee simply fails to turn up for work. Her employer is not even informed. No form of justification, such as a medical certificate, is forthcoming. In response, the employer sends a letter by recorded delivery requesting that the employee presents herself again for work immediately or justifies her absence.

Employer terminates the contract without severance pay

The employee’s silence continues to be deafening, even after two further letters by recorded delivery. We are now fourteen days on and the employer subsequently sends her a final letter by recorded delivery to say the employment relationship is considered terminated owing to breach of contract by the employee herself. This means that no severance payment will be made.

Employee nevertheless claims and receives full severance pay

At this point, the employee takes her employer to an employment tribunal and is awarded full severance pay, to her ex-employer’s bewilderment. Incredible but true: legally, this is perfectly valid! For years now, the Supreme Court has been handing down judgements that merely failing to meet a contractual obligation as an employee is not sufficient to claim breach of contract and make no severance payment.

Employer must show the desire to terminate

The employer must also demonstrate that the employee desired to end the contract in this way. Quite naturally in these kinds of proceedings, the employee will, cool as you please, declare that they never intended to terminate the contract by continuing their illicit absence for so long. The employer has, therefore, illicitly claimed breach of contract and must make a severance payment accordingly.

Dismissal for misconduct owing to insubordination

Legally, in these circumstances the employer should have opted for dismissal for misconduct owing to insubordination. Namely, this is failing to meet the contractual obligation to turn up for work and the subsequent obstinate refusal to rectify the situation, despite multiple clear letters of formal notice from the employer. There is a very strong chance that an employment tribunal will recognise this as misconduct in these circumstances, ruling that no severance payment is owed to the former employee. Or, how a legal determination of proper law can make the difference…

The elementary rules of courtesy

In this context, as a matter of fact, it should be highlighted that such reprehensible behaviour by the employee runs counter to the most elementary rules of courtesy, affecting not just the employer, but also and most prominently other employees. They, after all, are dutifully meeting their contractual obligations and may even have to put themselves out further to cover for their colleague’s illicit absence!

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