After the recent political unrest in a number of popular tourist destinations such as Turkey and Egypt, employers may face the prospect of dealing with employees experiencing delayed returns to work from leave.
While many employees believe they are entitled to be paid in these circumstances, the failure to attend work is classified as unauthorised absence which is not only unpaid but in some cases could lead to disciplinary action.
An unauthorised absence occurs when an employee fails to attend work without a statutory or contractual right, such as maternity leave, pre-booked annual leave or with the employer's permission. There is no legal obligation on employers to pay for unauthorised absence, unless the employee's contract of employment states otherwise.
When faced with a delayed return from leave, the first step is to check whether the scenario is covered in the Staff Handbook or any separate policy on attendance. If not, you should establish whether there was any fault on the employee's part before deciding how to respond. Depending on the reason for the delay some employers may decide to pay the employee despite not being legally obliged to do so. Others may opt to regard the absence as additional paid holiday.
Alternatively, the employer could treat the unauthorised absence as unpaid leave. A failure to pay in these circumstances is not an unlawful deduction of wages under section 13 of the Employment Rights Act 1996 because there is no contractual right to pay.
It is essential that employers act consistently and in a non-discriminatory way in how they deal with unauthorised absence, or they risk being found liable in the event of a successful unfair dismissal or unlawful discrimination claim being pursued by the employee. Having clear attendance and absence management policies, which includes examples of what constitutes authorised and unauthorised absence, will help employees understand what is expected of them and reduce the likelihood of disputes. Pam Loch, Managing Partner and Associate Employment Lawyer of niche employment law practice, Loch Associates Employment Lawyers. For more information on Loch Associates Employment Lawyers please go to www.lochassociates.co.uk and for HR Advise Me go to www.hradvise.me.