When an employee disappears: what should the employer do?

An employee may suddenly become uncontactable in three common situations: the employee is suspected of a legal violation and the public security authorities have restricted his or her personal liberty, for example by administrative or criminal detention; the employee has fled with the whole family to avoid debts or for other personal reasons; or the employee may have attempted suicide, is missing for a short period, or has collapsed at home through illness.

If an employer simply treats the matter as an "automatic resignation" or terminates the contract outright, it faces considerable legal risk. Where an employee is absent from work or leaves without notice and cannot be contacted, the employer should terminate on the ground of the employee's fault, promptly and in accordance with the law and with its internal labor discipline and rules. In my view the approach differs slightly according to the situation, but the usual process is as follows.

I. Requiring the employee to return. The employer should first discharge its management responsibility by contacting the employee by telephone, WeChat, email, text message and in person, so as to rule out force majeure or a legitimate reason, as where a visit to the employee's home reveals that he or she has collapsed and is unwell. If the employee cannot be reached, the employer should contact the family or the emergency contact, and where necessary serve a notice requiring return to work within a time limit, stating the consequences of failing to return. If every channel has been exhausted without contact, the employer may report the matter to the police, usually at the station covering the place of work, and should keep the receipt of the report.

The notice may follow this form: "[Name], you were absent from work without applying for leave on [date], [date] and [date], three working days. The company now requires you to return to work immediately on receipt of this notice and to explain your absence. If you had a proper reason, please complete the leave formalities and provide supporting documents promptly. If you do not return promptly and have no proper reason, the company will deal with the matter seriously in accordance with its internal rules."

II. Once the notice has been served, one of two things usually happens.

In the first, the employee returns. The employee must still explain the absence, and the response differs according to the circumstances. If there was a proper reason but no time to apply for leave, the company may still treat the matter as an ordinary disciplinary matter. If there was no proper reason and the attendance rules are met — for example, a rule that three consecutive days of absence may lead to dismissal — the company may terminate for serious breach of discipline.

In the second, the employee ignores the notice. This too may take two forms: ignoring it without reason, or being unable to respond for a proper reason, as where the employee is in hospital and has not received it. Employers are advised to send the notice once or twice more. Sending it more than once shows the employer's consideration, the reasonableness of its management and that it has investigated why the employee has not returned; a decision taken after a single notice, where the employee in fact faced a genuine emergency, leaves the employer in a weak position.

Note: where a courier is used, EMS is recommended, and the envelope should be marked clearly as a "notice to return to work". The internal rules relied on must have gone through the statutory democratic procedure and been notified to employees.

III. Dismissal. If, after several notices, the employee still does not return, or returns without a proper reason, or gives a reason but cannot support it, the company may terminate for serious breach of discipline and must notify the trade union. It should serve a notice of termination on the employee or the family; where the notice is posted, the name of the document, for example "[Name] - Notice of Termination of Employment Contract", should be stated in detail on the waybill.

A common difficulty in this process is service, where the employee and the family cannot be reached and neither can the emergency contact or anyone else connected with them. Employers have consulted us about an employee who may have attempted suicide and could not be reached through anyone connected with him, and about a family that had disappeared to avoid debts. In such cases service is the first issue to address. Minton's note therefore follows.

First, on service. Employers are advised to require the employee, in the onboarding form or the employment contract, to state a "statutory address for service" and to agree effective methods of service, such as a residential address, the address in the household register, a postal address, a designated email address, a QQ account, a real-name verified WeChat account and an emergency contact, confirmed by the employee's signature, as the lawful means by which the employer may serve documents. An employee who gives an incorrect address bears the consequences of failed service, as does an employee who fails to notify a change of address or to perform any other notified statutory obligation.

Second, criminal detention. Under Article 28 of the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China, where an employee is suspected of a crime or legal violation and is held for investigation, detained or arrested by the relevant authorities, the employer may suspend performance of the employment contract for as long as the employee's liberty is restricted. The contract is suspended, not terminated.

Third, administrative detention. The employer may actively seek information through the family, the public security authorities and other lawful channels, and where the conduct involves a fight or another serious breach of the internal rules, it may terminate in accordance with those rules.