Mon 13 Feb 2023

Ghosting - the new workplace trend for 2023?

Reportedly ghosting by both employees and employers is on the increase.

According to recent research by a recruitment company, 1 in 10 UK professionals admits to having 'ghosted' an employer.  What started out as an issue in recruitment is happening more commonly even once the employment relationship is established.  What is more, it is not just employees doing the ghosting - there has also reportedly been an increase in employers ghosting potential employees.

What is workplace ghosting?

The term ghosting stems from the online dating world.  At some point, during a relationship, one person stops communicating with the other without explanation - you are dumped without ever actually being told you are dumped. 

In the workplace, employees could ghost their employer at any stage - from not turning up to an interview or their first day on the job, through to walking out of the door at any stage in the employment relationship and never returning.  Similarly, employers may not respond to job applications, or may make a job offer but never follow through on it. 

Why is it happening now?

Walking away from an employment relationship without any warning or communication is, of course, not entirely new.  It is however on the increase.  There are a lot of factors that contribute to this including the increase in remote working since the pandemic and the increasing use of casual zero hours contracts in some industries.  With employers struggling to fill vacancies, prospective employees may have multiple applications submitted at the same time and be more selective about the ones they take forward.  The recruitment process being done remotely makes it that much easier to do.  Employers meanwhile may be proactively trying to create so much interest in a role that they simply don't have time to respond to all of the applicants.

What should an employer do if they are ghosted?

Firstly, employers should avoid jumping to any conclusions.  While an employee may have ghosted their employer, perhaps not wanting to have what they perceive will be a difficult conversation, they could also be (very) unwell or in some sort of trouble.  Employers should make every effort to ascertain the true position before taking any action.  This means trying to make contact using every method available to them including phone, text, email, social media accounts or even the old school writing of a letter.  If there is still no response and no other reason to think the employee has come to harm, then steps can be taken to end the employment relationship.

So how can the employment relationship be ended?

This can be tricky legally.  Has the employee resigned as demonstrated by their actions?  They will not have done so clearly and unambiguously which is the preferred option for the employer.  What if the individual turns up some weeks (or months) later claiming they were returning to work.  The employer would not have clear evidence of resignation.  Frustration - where performance of a contract becomes impossible, in this case because of non-attendance by the employee - is rarely successfully argued before an employment tribunal.  It is therefore better for the employer to take proactive steps to end the employment relationship to avoid any doubt.

This would ideally be done by following a disciplinary process using the lack of attendance and failure to communicate as the misconduct.  The employer would usually need to invite the employee to a disciplinary hearing, reconvene it if the employee doesn't turn up and take the decision to dismiss in the employee's absence as a last resort.  Throughout the process the employer should continue to use all methods of communication available to contact the employee.  That gives the employee several opportunities to make contact and the employer then has a record of their attempts to engage with the employee.  The end result should be that the parties have no doubt that the employment has terminated. However, employers may want to circumvent this process to some extent and, potentially, could seek to tie up any loose ends by way of a written communication to the employee (whether by letter or email or both).

What risk is there to the employee of ghosting an employer?

If an employee leaves without giving the required notice then they will be in breach of contract and the employer could, theoretically at least, sue and recover its losses. In practice, most of the time the losses incurred by an employer are likely to be less than the cost of pursuing a breach of contract claim against the employee - if they can find them.  More realistic is the risk of a negative reference.  While many employers now only supply factual references, there would seem to be no issue with including a sentence saying the employee left on a particular date and despite making best efforts to contact them, the company have not heard from them since.  This is likely to be problematic for the employee when trying to obtain a new job.

What about restrictive covenants or other post termination obligations?

The obvious difficulty here is if the effective date of termination is unclear then it is difficult to identify how long post termination restrictions would apply for.  However, it may be possible to argue the employee was employed to a certain date, with the terms of the post termination restrictions starting from then.  This is an area where legal advice would likely be necessary. 

Is ghosting ever acceptable in the workplace?

Most people would likely say no.  At the recruitment stage, just disappearing after extending or accepting a job offer is rude and unprofessional. Who would want to work for an organisation or hire a person who acts that way?  Perhaps the only positive that could be taken from it is the party who is ghosted may see it as a lucky escape from a person or business they would not want to work with anyway.  Let's hope this is a trend we see less of in 2023.

In case you missed it, you can also listen to our podcast on the topic.

If you'd like to speak to one of our experts, please don't hesitate to contact our employment team.

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