I don’t know if there is something in the air… but I have been asked this question several times in the last month, so I thought I would share the answer with you all.
Hopefully this problem will not arise too often within your business, but if it does, it is important that you know what steps to take. Before you jump to potential dismissal, it is important to obtain as much information as you can;
- The nature of the offence the employee has committed
- The period of sentence they have been issued
- What role does the employee have within the business
- Will the conviction have an impact on the reputation of your business
What are your options?
- Consider the contract ‘frustrated’ and the employment relationship becomes automatically terminated.
- Taking disciplinary action against an employee with the potential outcome of dismissing them.
- Taking no disciplinary action, but instead keeping the employee’s job open for them pending their release from prison.
- Frustration of Employment contract
If an employee is issued with a long custodial sentence, then you may argue that the employee’s contract has been ‘frustrated’. This means that an unforeseen circumstance makes it impossible for the parties to fulfil the terms of the contract. As such, the employment relationship between the employer and employee is automatically terminated.
This route is not always considered favourable by Employment Tribunals, so I would advise as a general rule to follow your internal Disciplinary process.
Dismissal
There are three reasons for dismissal that may be considered legally fair;
- Employee’s conduct
- Some other substantial reason that justifies this action
- A statutory restriction that prevents the employment continuing
Some other substantial reason that justifies this action
If your employee has been issued with a long sentence, then it may be considered fair to dismiss on the basis that the employee will be unable to perform the duties set out in their contract of employment.
On the basis of conduct, this would be related to the offence they have committed and if this would impact on their role. For example fraud or sex offences. In some cases, having a criminal offence can give rise to ‘a statutory restriction that prevents employment continuing’, for example if the employee works with children or young adults, or found guilty of a serious driving offence.
Fair process
Like any dismissal it is really important to follow a fair procedure and consider all the facts. There have been several cases that have resulted in the convicted employee being awarded a compensation award, simply because the Employer failed to follow a fair process. If an Employer disregards their disciplinary procedure or the Acas Code of Practice, regardless of the fact the employee has gone to prison, a tribunal is likely to find that the dismissal is unfair.
Keep the role open for them
If they are not going to be in prison for a long time and the offence does not impact on your business as discussed earlier, then you could consider leaving their role open. Again, it is important that you follow the correct process with this and communicate any action in writing.
If you are in the unfortunate position to have to deal with a situation like this or similar, please do not hesitate to contact our helpful friendly team help@onehrsoftware.com. Please quote DIB for a discounted rate.