An employee has been given a custodial sentence. Esther Smith and Martin Brewer advise on whether the employer should deal with this as a frustration of contract or not.

The question:

Legal advice:

Martin Brewer, partner, Mills & Reeve

Absence such as this is not usually dealt with by the doctrine of frustration, however frustrating that may be.  The view the courts tend to take is that the unavailability of an employee, whether that is for imprisonment or sickness for example, may give rise to a dismissal but you still have to act fairly in treating the absence as a reason for dismissal and follow, as far as possible, a fair procedure. 

In a case such as this you could treat the absence as ‘some other substantial reason’- the non-availability of the individual to work, as the reason for the dismissal.  In this context the employer has to consider whether it can bear the absence and it’s a balancing exercise between the impact of the absence on the business against the impact of the dismissal on the employee.  My advice is to treat it like a long-term sickness case.  Alternatively, although still SOSR, you could argue he should be dismissed because his actions brought the employer into disrepute (although this will require evidence – you can’t just assert this to be the case). 

Martin Brewer can be contacted at martin.brewer@mills-reeve.com . For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar

Generally speaking a prison sentence of this duration would give rise to a frustration situation. It is often difficult for an employer to rely on frustration as it is not a ‘dismissal’ in law, and therefore denies the employee to any entitlement to notice or protection against dismissal. Whilst the employee may have committed the act which resulted in his imprisonment, the ‘intervening event’ is really the court’s act in giving him a prison sentence – i.e. it is not that the employee has chosen not to come to work to perform his duties but has been prevented from doing so as a result of the custodial sentence.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.