Going AWOL, Spanish Style

If someone went absent without permission, they used to call it “French leave”. Perhaps it should be re-named “Spanish leave” after a story emerged recently that a Spanish civil servant had not attended work for six years. The really Alice-Through-The –Looking-Glass element to this is that nobody actually asked where he was or what was happening to the work he was employed to do for all of that time. His whereabouts were only questioned when he became eligible for a long service award after 20 years’ service. There’s a certain irony there that the Red Queen would have enjoyed!

Joaquin Garcia was employed to supervise the building of a waste water treatment plant in Cadiz. Mr Garcia says he was bullied because of his family's politics, and was sent to the water company to be out of the way. When he got there he found there was no work to do. He alleged that he was reluctant to report the situation as he had to provide for his family, and was worried that at his age (69) he would not get another job. He said he did go to the office, although not for his full contracted hours and that he dedicated himself to reading philosophy.

It was a classic case of the right hand not knowing what the left was doing. The water company was run by local authorities. The water company thought that Mr Garcia was being supervised by the local authorities and the local authorities thought Mr Garcia was being supervised by the water company.

Throughout this prolonged philosophy-infused absence, Mr Garcia continued to receive his salary of €37,000 a year. Having showed staggering ineptitude in the management of their employee to date, the Spanish authorities took him to court to recover as much of the overpayment as possible. The court found in the authorities’ favour and ordered Mr Garcia to pay a fine equivalent to one year’s salary after tax. This was the most amount of money that the authorities and company could legally reclaim.

Mr Garcia, who has since retired, has appealed by writing to the local mayor asking not to pay the fine. He has also asked for a review of the judgement.

This was an extreme case and for somebody to go unnoticed for six years is something that one would hope wouldn’t usually happen in a standard office or workplace.

Employees do sometimes go absent without authorisation and if they do you have to manage it – quickly! Investigate and try to get the employee’s explanation before taking action.

If the employee doesn’t turn up for work try to contact him to find out why he’s absent. If after several attempts to contact the employee you have not heard anything back, try and contact the next of kin. We also check social media to see if we can find out what’s happening that way too. Follow up with a letter asking the employee to make contact.

Unauthorised absence is a minor misconduct matter in most cases. Dismissal for a day’s absence (especially if there is a good reason) would be disproportionately onerous, unless this is just the latest in a series of unauthorised absences and a final warning is in place. Even, so you have to be careful to consider mitigation. On the other hand prolonged absence without a valid explanation will make a dismissal more likely to be fair, so long as the proper procedures have been followed.

Write to the employee setting out your concerns and the evidence and arrange a formal meeting to allow him to put his case forward. Give the right to be accompanied. If the employee doesn’t attend, re-arrange at least once and advise that if he doesn’t attend the next meeting you will consider matters in his absence. If you then dismiss, make sure you offer a right of appeal.

If you need help getting HR problems resolved in your business, get in touch.

Signed up for our free resources and free weekly tip yet? Click here.

Russell HR Consulting provides expert knowledge in HR solutions, employment law training and HR tools and resources to businesses across the UK.

Subscribe to our free monthly HR newsletter. Russell HR Consulting employment law newsletters are emailed automatically to our ever-growing number of subscribers every month.