Key points

* Employers should have no need to remind employees that they are expected to turn up for work on time and to remain at their desks or workstations until the end of their working day or shift. People who are routinely late for work, or who take extended lunch breaks, or who are in the habit of slipping away early, or who take an unauthorised day off every now and again to attend the funeral of yet another distant relative, are putting their jobs at risk. They are in breach of their contracts of employment and should not be surprised if their employer decides that 'enough is enough'.

The reasonable employer

* The reasonable employer will first seek out the malingerer, invite him (or her) into his office 'for a chat', listen to his explanations and (if those explanations are unacceptable or incredible) warn him that he will be dismissed if he does not mend his ways. Fortunately, most malingerers are quickly identified and uprooted - long before they have earned the right to pursue a complaint of unfair dismissal before an employment tribunal.

* As a matter of good industrial relations practice, an employer should never presume that an absentee employee is malingering. Common sense alone dictates that he (or she) take reasonable steps to find out why the employee has not turned in for work on time, why he has not yet returned from his lunch-break, why he slipped away early, or why he took a day off work without permission. It could be that the employee has suddenly been taken ill or has been injured and unable to contact his employer. He may have suffered a bereavement or have been distracted by a serious domestic crisis. If he is yet again late for work, he could have been delayed by traffic, or whatever.

* The reasonable employer will ask the right questions, consider the facts as he knows them, review the employee's punctuality and attendance record, reflect on his (or her) general attitude and demeanour, and take his decision accordingly. This latter approach is particularly important in the case of a long-serving and otherwise well-respected employee whose recent and uncharacteristically poor attendance record may be symptomatic of emergent domestic, emotional or financial worries which may not have been fully explored or investigated. Although his conduct may be no less disruptive than that of the professional malingerer, his peremptory dismissal would undoubtedly be viewed as unfair by an employment tribunal.

* An employee who is disciplined or dismissed because of his (or her) unacceptable attendance record should be afforded an opportunity to appeal against that decision if he considers that he has been unfairly treated.

* Although employees are well aware that persistent late attendance and unauthorised absenteeism will inevitably invite disciplinary action, section 3 of the Employment Rights Act 1996 nonetheless requires employers to include a note in the written statement issued to each employee 'specifying any disciplinary rules applicable to the employee or referring to a document that is reasonably accessible to the employee and that specifies such rules'.


For the time being at least, this requirement does not apply to a small firm or business in which the total number of persons employed (including persons employed in other branches of the same business or by any associated employer) is less than twenty (ibid. section 3(3)). However, from September 2003, when section 36 of the Employment Act 2002 is expected to come into force, that exemption disappears. What this means is that all employers will henceforth be required to adopt minimum rules and procedures for dealing with disciplinary issues within the workplace. For further particulars, see Disciplinary rules & procedures

* High levels of absenteeism can be very costly and damaging, especially to the small business. When drawing up his disciplinary rules or explaining his situation to the job applicant or new recruit, an employer should stress the importance of good timekeeping and should point out the consequences if an employee ignores prior warnings and routinely takes time off work without good reason or prior authorisation. Most employers insist that people who are likely to be late or who will not be attending for work on any day should contact them as soon as possible, certainly within one hour of their normal starting time on that day. See also Dismissal on grounds of ill-health and Sickness and statutory sick pay.

* ACAS Code of Practice 1 (Disciplinary & Grievance Procedures) urges that, except for gross misconduct, no employee should be dismissed for a first breach of discipline. But, a great deal will depend on the circumstances, including the size and administrative resources of the employer's undertaking. As was suggested earlier, few professional malingerers will survive with an employer long enough to qualify to pursue a complaint of unfair dismissal before an employment tribunal. So far as the longer-serving employee is concerned, it will be for the tribunal to decide whether, in the circumstances, the employer had acted reasonably in taking the decision to dismiss. Copies of ACAS Code of Practice 1 (Ref. COP1) are available from ACAS Reader Limited on 0870 242 9090.

Deductions from pay

* An employer does, of course, have every right to withhold the wage or salary otherwise due to an employee in respect of a period of unauthorised absence from work. But to withhold an excessive amount (for example, by deducting a half hour's pay to punish an employee who is five minutes late for work) is tantamount to imposing a fine. This is illegal, unless:

1. the employee had given his (or her) prior written consent to the making of that additional deduction; or
2. the employer's right to make that deduction had been expressly incorporated in the employee's contract of employment or had previously been notified to the employee in writing.

* An employee cannot be required to give retroactive consent to the making of a deduction from his (or her) pay packet. In other words, an employer 's policy in relation to late attendance and unauthorised absenteeism must be made known to every employee before he can presume to put that policy into effect (see section 13 of the Employment Rights Act 1996). See also Deductions from pay, Dismissal for misconduct, Dismissal on grounds of ill health and Wages, payment of.

Time off work

* The reader will be aware that certain categories of employee have the statutory right to be permitted a reasonable amount of paid (or unpaid) time off work to enable them to carry out their functions or duties (as trade union officials, trade union members, officials of specified public bodies, employee and workforce representatives, safety representatives, pension scheme trustees, and so on). The pregnant employee likewise has a right to paid time off work for ante-natal care; and the redundant employee, paid time off to look for work or to arrange for retraining. Employees also have the right to be permitted a reasonable amount of unpaid time off work to attend to the needs of dependants; while the parents (or adoptive parents) of children under the age of five may take up to 13 weeks' unpaid parental leave. For further particulars, please turn to the sections titled Parental leave and Time off work.

Absences following maternity leave

* A new mother, who is prevented by illness or injury from returning to work after a period of ordinary or additional maternity leave, does not forfeit her right to return to work so long as she informs her employer that she is ill and produces a doctor's sick note (or a self-certificate for illness) in keeping with the usual sickness absence procedures laid down in her contract of employment. For further particulars, please turn to the section titled Maternity rights.