Employers in the UK have a common law duty to take reasonable care for the health, safety and wellbeing of their employees. The duty of care extends to an employee’s physical and mental health.
If an employee fails to turn up to work without notifying their employer and/or without a valid reason (such as holiday, illness, family emergency etc.), their absence is considered unauthorised. To comply with its duty of care, an employer should take steps to find out the reason for the employee’s unauthorised absence and to ensure they are safe, particularly where the employer is aware of any personal or health problems of the employee.
An employer should first make reasonable attempts to contact the employee (by calling, emailing or sending a text message). An employer should use the employee’s work contact details first, and then any personal contact details they have on file. An employer should keep a record of any such attempts, including the date, time and method of contact.
It is not legally specified who within the organisation should make these contacts attempts, but (depending on working relationships) the employee’s line manager or a HR representative are often best suited for this action.
It is also not legal specified how many attempts should be made before the individual’s emergency contact is contacted, but good practice indicates repeated attempts at different times of day over a course of 48 hours. Different contact numbers and contact methods should be attempted if the contact information is known by the organisation.
Following these attempts, if an employer is unable to make direct contact with the employee, then they should then try and speak with their emergency contact (if they have emergency contact/emergency contact information on file). When speaking with their emergency contact, the employer should take care to ensure they do not cause any unnecessary panic.
Depending on the nature of the individual’s work, other steps by the employer can include speaking with other colleagues about recent contact with the missing individual or any information they may have shared about being away from work (e.g an appointment), checking the employee’s work calendar and checking recent log ins to their work computer.
Once an employer has tried all options and has not made contact with the employee, the employer is able to contact the police and ask them to conduct a welfare check, or recommend this to their emergency contact/family if they have been able to make contact with them.
At this stage it is good practice for an employer to also send a letter to the employee’s home address (if appropriate – for example where the employer knows that an employee lives alone. If the employee lives with their emergency contact who has stated they have had no contact with this person, this letter may not be helpful. This letter is also not appropriate if there are any safeguarding concerns previously shared about this person’s home). This letter should write to the employee and inquire about their absence and express concern for their health and safety. The employee should be asked to contact the employer as soon as possible, and should be informed that any continual absence without contact may be subject to disciplinary proceedings.
As a matter of best practice, an employer should have systems in place to help identify any potential problems regarding an employee’s attendance and measures in place to support with mental health concerns shared by an employee. All employees should be made aware of mechanisms to gain support within their organisation and an employer should keep note of conversations around any indications of low mental health, unsafe home life or upset at work, dated and with the follow up actions agreed to.
Beyond attempting to contact the employee, their emergency contact and notifying the police, there are no further legal obligations on employers with regards to an employee’s unauthorised absence.
Police encouragement to an employer to attend the employee’s home themselves or attempt to contact them through social media should be dissuaded, with the police reminded that these are not appropriate actions by an employer or colleague.
Resources
There are no specific confidentiality standards under the GDPR, but any processing of personal data (including disclosure of personal data) must be fair, lawful and in accordance with the principles of the GDPR.
The employer would rely on legitimate interests to share personal data about an individual (e.g. contact details, their last known location) with a third party.
The Balancing Test (explained in this document in the section below) and the reasonable expectations of the employee will need to therefore be considered in all instances. In some very limited circumstances, an alternative lawful basis may be available – if the employer has reason to believe that the employee is missing in a life or death situation, they would be able to rely on the vital interests lawful basis, e.g. where sharing information with the police is vital to the employee’s life interests.
While it would likely be expected by an employee that an employer would contact their emergency contact and the police if the employee is missing, this would likely be expected after a particular time period. For example, an employee may not expect their emergency contact and the police to be immediately contacted if an employee misses only one day of work.
Prior to contacting third parties in reliance on legitimate interests, the employer should have a genuine reason for thinking that an employee is missing or needs to let sufficient time pass for this to be a reasonable assumption. Depending on the working circumstances, 48 hours is considered a reasonable time before contacting the emergency contact.
Sharing with emergency contact:
The Balancing Test will likely be met because the purpose of the disclosure is to assist with locating the employee/try to ensure the safety of the employee.
This is, however, fact specific. For example, if the employer has a reason to believe that contacting emergency contact would harm the employee’s privacy or competing interests (e.g. if it is known or suspected that they live with an abusive family), the Balancing Test would not be met.
Sharing with police:
Personal data can be shared with ‘competent authorities’, such as the police, where it is necessary and proportionate to do so. The UK GDPR focuses on necessity of disclosure (i.e. not disclosing more data than is necessary for the purpose).
The employer should only provide as much personal data as is relevant, adequate, and limited to the purpose of sharing with the police to fulfil their purposes of investigating a matter.
The amount of personal data necessary depends on the circumstances of each case, but may include sharing such relevant details as:
Sharing with media:
It would be more difficult to justify sharing information with media as the only legitimate interest would be where an announcement is made in the media for the purposes of finding a missing person, in which case we would recommend that the employer is led by the person’s emergency contact and the police on whether it is actually necessary.
The Balancing Test would not be met if the employer shared information with media for purposes of a sensationalist story.
For example, with emergency contact consent (if able to be gained) an organisation is able to confirm to the media how long ago the person last attended work. This is particularly relevant for publicity purposes if the individual was last seen at work.
Security:
Article 5(1)(f) of the UK GDPR prescribes an ‘integrity and confidentiality’ principle, which explains that data should be “processed in a manner which ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.” This is reinforced under Article 32 of the UK GDPR, which requires a data controller to take appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
Therefore, employers should ensure they are taking appropriate technical measures when sharing data with a third party (e.g. encryption for sensitive personal data, appropriate data sharing provisions, data minimisation etc.).
A company must have a valid lawful basis under Article 6 GDPR for processing personal data such as details of employees’ emergency contact.
A request for staff members to allocate a emergency contact would likely be made under the lawful basis of legitimate interests.
A company would need to conduct a legitimate interests assessment (LIA) which we have summarised as follows:
In terms of additional parameters, the employer must handle the personal data of the emergency contact (and personal data in general) in accordance with the principles of the GDPR including fair and transparent processing; data minimisation; purpose limitation; data accuracy; and data security.
Where emergency contact details have been provided to an organisation, it is recommended as best practice to annually request colleagues to review the emergency contact details provided, to ensure they are up to date, as well as the employee’s own address and contact details on file.
A company would be able to request information about any communications colleagues have had with the absent individual, with the aim of knowing if the individual has been in contact with anyone and when.
Following a missing report being made, a company would be able to inform the employee’s team that the individual has been reported missing, as it is in the company’s legitimate interests to manage its employees (including by letting them know that a person will not be working for some time).
As with the reporting to the police and emergency contact, the employer should only make these communications when they have a reason to believe that the employee is missing, such as a missing report being accepted by the police, and provide only the information that is actually necessary for other employees to know, e.g. the fact that the person is missing, since when, and who within the company can be contacted with any relevant information. This will assist with meeting the Balancing Test.
Colleagues should be advised to direct any media requests in a work capacity to their line manager/HR manager, as this media presence represents the organisation. Colleagues who decide to speak to the media as a friend/loved one of the missing person are able to do so without permission or oversight from the company.
If an employee fails to turn up for work without notifying their employer and/or without a valid reason, their absence is considered unauthorised, and they are technically in breach of their employment contract. As such, an employer would not usually be required to continue to pay the employee their salary during such absence.
It would be at the employer’s discretion whether to continuing paying the employee (and this would largely depend on the circumstances) or to make a payment to the employee’s family instead. There is nothing to stop Missing People contacting the employer on the employee’s family’s behalf and making such a request.
An unauthorised absence would generally be considered a form of misconduct, and any subsequent termination should be in accordance with the employer’s disciplinary procedure and the Acas Code of Practice. This would normally involve inviting the employee to attend a disciplinary hearing, during which they would be provided with the opportunity to explain their absence. Unauthorised absences would usually be dealt with by a series of warnings that may, if the misconduct continues, result in a dismissal. Please note a disciplinary hearing can be held in the absence of the employee provided they have been given (or attempts have been made to give them) advance notice.
There is no set period or rule for how long an employee must be absent before an employer can commence a disciplinary process and/or consider terminating their employment. This would, again, depend on the circumstances.
If the employer has taken all reasonable steps to contact the employee, and the absence is entirely unexplained and continues for an extended period, it would be reasonable for the employer to terminate their employment.
Resources
Acas Code of Practice on disciplinary and grievance procedures
Employees in the UK are entitled (under the Employment Rights Act 1996) to a reasonable amount of unpaid time off work to deal with an emergency or unexpected situation involving a dependent (known as “time off for dependants”). This is generally limited to the following situations:
A dependent would include a person’s spouse, civil partner, child, parent or member of their household.
Depending on the circumstances, a person going missing may not, strictly speaking, fall into one of the above situations. This would mean that their family members do not have a legal right to take time off for dependants. Depending on the organisation, some companies may allow this form of leave to be considered paid dependency leave, as the leave is needed to organise support to find a loved one at a time of severe difficulty and/or arrange support with children or other family members. They would also be able to take this time as annual leave or request unpaid leave. The situation should be discussed with their employer who may grant leave (paid or unpaid) given the extraordinary circumstances.
Should the family member require a more significant amount of time off, they could consider making a flexible working request, for example, to reduce their workings hours (i.e. work part-time) or change their start or finish times. All employees have the right to make a flexible working request and can make two such requests per year. It is important to keep in mind that, unless agreed otherwise, if the request is approved by the employer, this will be a permanent change to the employee’s terms and conditions of employment.
Resources
Section 57A of the Employment Rights Act
UK Government Guidance, “Time off for family and dependants”
Acas Guidance, “Statutory flexible working requests”
UK Government Guidance, “Flexible working”
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