Legal

How to deal with a ‘ghosting’ employee

4 Feb 2019 By Nicola Brown

What can you do when an employee stops turning up for work without explanation? Nicola Brown reports

‘Ghosting’ is a term which came from the world of online dating. It is what happens when someone ends a relationship with someone suddenly, and without explanation withdraws from all communication. 

In an employment context, ghosting happens when an employee stops turning up for work and doesn’t respond to the employer’s attempts to contact them. They don’t actually resign, but sooner or later the employer reaches the conclusion that the employee isn’t coming back. 

Although employees going AWOL is something most employers have come across from time to time, the subject is particularly topical at the moment because economists in the US have started to notice an increase in millennials ghosting their employers. And as people tend to say, when America sneezes, Britain catches a cold, so it seems likely an increase will happen here too. 

According to the US economists, employees are much more likely to ghost their employers when they are in transient temporary work and when employee engagement is low, so the rise in casual and zero-hours work seems likely to be a factor. 

What can UK employers do? 

As a starting point, if someone doesn’t report for work without explanation, their absence would normally be unauthorised and therefore unpaid. However, even if they are not being paid, their absence is often very inconvenient, and employers understandably want to be able to take control of the situation rather than letting it continue indefinitely. 

Unfortunately, UK law does not have a concept of ‘self-dismissal’, where an employer can deem a dismissal after a certain period of time based on an employee’s lack of contact. 

In the UK, if an employee is in fundamental breach of contract (such as being absent without authorisation and not responding to the employer’s contact), that breach would need to be formally accepted by the employer, and the resulting termination would be a dismissal by the employer, not a resignation by the employee. Understandably, the employer would normally argue that the breach of contract has terminated the employee’s employment with immediate effect, so that no notice pay would be payable. 

For employers, the best approach is usually to try to contact your absent employee by as many different communication methods as you can – for example, by phone, text, email, recorded delivery (keeping records of all the attempts to contact them, and giving a clear and reasonable deadline for response). This is a good reason to ensure your staff contact details are kept up to date.

If you do not receive a response by your deadline, you can terminate employment. That termination will be a dismissal, rather than a resignation, so you will need to bear in mind a fair procedure and the Acas Code (particularly for employees with two years’ service or more). It is always best to take advice before proceeding with any dismissal. 

Case law shows that a dismissal can only take effect when it is actually received by the employee. Unfortunately, employees who ‘ghost’ their employers often change their address without letting their employer know. Therefore, employers should ensure the dismissal of a ghosting employee is communicated by as many methods as possible, to try to minimise the risk of them claiming not to have received it (and therefore not having been dismissed). 

It can also be worth including a clause in employment contracts to specifically state that written notice will be deemed to have been received by the employee a certain number of days after it has been sent to their last known address, but at the moment those clauses are relatively untested in an employment context. 

Nicola Brown is a partner at Pure Employment Law

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