Suspected Unauthorised Absence

Employee Falsely Accused Of Planning Sickness Absence Was Constructively Dismissed

In this case, an employment tribunal held that the heavy-handed way in which a manager dealt with suspected unauthorised absence entitled the employee to resign and claim unfair dismissal.

The Facts

Mr Butler had worked in the employer’s garden centre since 1998. He had reported to the company’s owner, Derrick Dulson. When the business began to struggle financially, changes were made to the company’s structure which also included cutting benefits and bonuses. Derrick Dulson’s son, Nick Dulson, was appointed as executive director. Mr Butler was told he now reported to Nick Dulson. The relationship between Mr Butler and Nick Dulson was “not warm”. Mr Butler felt that the new arrangements meant that he had been demoted.

The organisational changes caused Mr Butler “considerable stress”, with his symptoms including a loss of voice. He arranged to see a doctor and his medical appointment on 30 March 2010 was entered into his work diary. The doctor signed him off for two weeks. Mr Butler went back to work to attend to a number of matters before his absence. Mr Butler found Nick Dulson on the telephone and was later unable to locate him to tell him about his intended absence. On the morning of 31 March 2010, Mr Butler’s wife rang the workplace. She informed the receptionist that her husband would not be at work that day and asked that Nick Dulson, who was not present at the time, be informed.

On 1 April 2010, Mr Butler received a letter (just before he went out to see the doctor again because he had been feeling worse) from Nick Dulson dated 31 March 2010 headed “Absence without leave (Stage 1 verbal warning)”. The letter stated that Nick Dulson was “disappointed to have been informed by several members of staff today that [Mr Butler was] off sick” and went on to describe Mr Butler’s actions as “blatant insubordination”. It said that Mr Butler had told a number of employees that he “planned to be away ‘sick’ but thought it acceptable that [he] did not inform [his] boss”.

Mr Butler was very angry and, shortly after seeing the doctor and receiving treatment, he drafted a letter of resignation with the help of his solicitor. The letter set out his belief that he had been demoted and described the letter of 31 March 2010 as the “final act of inhumanity and ignorance” that forced him to resign. Mr Butler’s wife delivered the letter to the company on 7 April 2010.

The Employment Tribunal Decision

The employment tribunal upheld Mr Butler’s subsequent constructive dismissal claim. The tribunal accepted that none of the company’s actions before 30 March 2010 could constitute a breach of contract. It also acknowledged that Mr Butler was not entirely blameless for the confusion that had arisen about his sickness absence. It would have been very easy for him to have left a note on Nick Dulson’s desk to notify him that he would be absent. The tribunal realised that, while Mr Butler probably ought to have made more of an effort, he may not have been thinking straight because of his stress-related symptoms. In addition, Mr Butler’s wife had telephoned the company early the following day.

The tribunal also noted that Nick Dulson should have taken steps to get an explanation from Mr Butler before jumping to conclusions and issuing him with a warning, especially given his long and exemplary service. The relationship of trust and confidence between the employer and senior employee entitled Mr Butler to expect that he would not be judged on the basis of the accounts of others without having the chance to defend himself.

The employment tribunal concluded that Mr Butler had been constructively dismissed by Nick Dulson when he came to the conclusion in “trenchant and offensive terms” in his warning letter that there had been “blatant insubordination” without hearing from the claimant. Nick Dulson had also been wrong to suggest that Mr Butler was not really sick when he said that he “planned to be away”. However, the tribunal found that Mr Butler had contributed to his own dismissal by 20% and that his compensation should be reduced accordingly.

Practical Tips

A line manager faced with an employee believed to be absent without leave should try to make contact with the employee on the first day of the unauthorised absence, after which they should try the individual’s emergency contacts.

If contact has not been made by the end of the second day, the line manager can write to the employee confirming that continued unauthorised absence without good cause could result in disciplinary action. An investigation can be carried out on the employee’s return to work.

Butler v Shropshire Leisure Group Ltd ET/1604296/10

Suspected Unauthorised Absence