When a new starter goes from sick leave to AWOL

You have recruited a new employee, agreed their start date and prepared for their first day. Before they are due to start, they contact you to explain that they are unwell and will not be able to attend. So far, this is a sickness absence. But what happens when their start date passes, you hear nothing further and your calls, emails and messages go unanswered?

A recent client situation highlighted just how quickly what initially appears to be a straightforward sickness absence can turn into something quite different.

The employee had done the right thing initially and contacted the employer before their first day to advise that they were unwell. The difficulty arose when they then stopped communicating altogether.

The employer was understandably confused. Were they still off sick? Were they intending to start work? Had they changed their mind about the job? And, importantly, how long was the business expected to wait?

An employee being unwell does not remove their responsibility to maintain reasonable contact with their employer and follow the appropriate absence reporting arrangements.

Initially, an employer should treat a reported illness as exactly that. The employee should be told what contact is expected, when they should provide an update and, where applicable, when medical evidence will be required.

If those updates stop and reasonable attempts to contact the employee are unsuccessful, the issue begins to move away from simply managing sickness absence. The concern is now their failure to maintain contact and explain their continued absence.

This is where employers sometimes get stuck. They continue recording the individual as sick because that was the last information they received, even though days may have passed without any further communication.

You do not have to allow the situation to remain unresolved indefinitely. The temptation, particularly with someone who has never actually attended their first day, can be to assume they no longer want the job and simply remove them from the system.

Silence is not necessarily a resignation, and there could be a genuine explanation for the lack of communication. The employee may be seriously unwell or there may be circumstances preventing them from making contact. There may also be circumstances where the underlying health condition engages disability protections, so an employer should avoid making assumptions about the illness itself. Instead, make reasonable attempts to establish what has happened. Use the contact details you hold, clearly explain that you have not received an update since their initial sickness notification and ask them to contact you by a specified date. Importantly, tell them why you need them to respond and what may happen if they don’t.

If repeated attempts at contact are unsuccessful, the employer should write formally. The communication should confirm the attempts already made to contact them, acknowledge that their last communication was to report sickness and explain that no further information has been received. Give them a reasonable deadline to make contact and confirm whether they remain unwell and whether they still intend to take up their employment.

It should also make clear that if they do not respond, the employer will have to make a decision based on the information available, which could ultimately result in their employment being brought to an end.

Creating that paper trail is particularly important. It demonstrates that the employer has not simply treated sickness as misconduct or assumed that the employee has resigned.

Someone never physically attending work does not necessarily mean that there is no contractual relationship to consider.

The offer made, whether it was accepted, the terms of the contract and the agreed commencement date can all be relevant. Employers should therefore check the contractual position rather than automatically assuming that because no work has been performed, there is nothing to terminate.

How the arrangement is ultimately brought to an end should reflect the actual contractual circumstances.

A new starter calling in sick before their first day can be frustrating, but sickness itself should not lead to assumptions about their commitment to the role. The position changes when communication stops. At that stage, the issue is no longer simply “the employee is off sick.” The business does not know why they remain absent, when they might return or even whether they still intend to start. Make reasonable attempts to contact them, clearly set out what information you need, give them a deadline to respond and explain the potential consequences of continued non-contact.

If there is still no response, you can then consider bringing the employment relationship to an end based on the circumstances and the contractual position, rather than leaving the vacancy in limbo. Sickness may explain why someone cannot attend work. It does not mean an employer has to accept indefinite absence with no communication at all.

If you have any concerns about this subject contact us at enquiries@121hrsolutions.co.uk and we can discuss.