HR & Employment Law Insights

Helping family businesses, start-ups, charities, social enterprises, and other growing or established businesses throughout the UK make sense of HR and Employment Law challenges.

We get asked HR related questions every day and each week we will be sharing our top question of the week that we have been asked here at The HR Booth.

This week Alistair answers the question "What should I do when an employee's medical certificate runs out and they have no intention of returning back to work?"

Question

We have had an employee off sick for 8 weeks and we’ve been told by other employees that she has informed them she has the intention of coming back to work.  Her medical certificate expired just over a week ago and we’ve had no further contact with her.  I’ve attempted to call her on her landline and mobile, requesting that she contacts me to discuss but she has not returned any of my calls.

Can I write to her to confirm we have terminated her employment due to her being AWOL?

Answer

If she has more than 2 year’s service, she could bring an employment tribunal claim if you dismiss her unfairly by not following the correct dismissal procedures.  If she has less than 2 years service, she may still be able to bring about a claim, particularly if her absence is related to a disability or if she meets on the of characteristics under the Equality Act.

I would advise you to write out to her, requesting that she contacts you by close of business the day after tomorrow, providing you send the letter today.  In the letter, state you have attempted to contact her on numerous occasions without success and as her medical certificate has expired, her absence is currently recorded as unauthorised.  I would suggest sending 2 letters, one normal post and one recorded delivery.

If she does not respond, we then need to invite her to attend a formal disciplinary hearing in relation to her unauthorised absence and give 48 to 72 hours notice of this meeting. Again, send one letter normal post and recorded delivery.

If she fails to attend that meeting, send a further letter stating you are rescheduling the hearing due to her non-attendance, and that if she does not attend you will hold the meeting in her absence and therefore have to make a decision without any representation from her, which is likely to result in her dismissal.

At that stage, we need to confirm her dismissal in writing and give her the right of appeal.

If she states she is not returning, request this in writing and if that’s not forthcoming, write out to her to acknowledge her resignation and ensure this is sent recorded post and normal post so you have a paper trail to confirm she has resigned.

Under employment legislation we can’t assume resignation, therefore someone has to break the working relationship, either the employer or the employee.

If we don’t have an official resignation letter and the employee has obligated contact by submitting medical certificates and providing you have taken all reasonable steps to make contact this would be a fair reason to dismiss providing you have followed this process.

YOUR TURN

Have you had to deal with a similar situation?

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