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Lucie Mitchell

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Freelance journalist and former editor of HRZone

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Ask the expert: Employee given a prison sentence

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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:

One of our employees has just been given a six-month custodial sentence. I am wondering how to deal with his employment. I see that the definition of frustration of contract includes reference to the fact that the ‘intervening event is genuinely unforeseeable and not when an event occurs that was caused by the employer or employee’. Well, the employee caused the event that led to their custodial sentence.
 
Is this situation typically dealt with as a frustration of contract or do we need to maintain his employment status for the next six months? Or maybe some modified form of disciplinary action now? If so, I’m not sure of our grounds for disciplinary / dismissal – the crime is not directly relevant to his work – it was an act of violence outside work.

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). 

It’s hard to advise without seeing more detail or knowing the size of your business etc, but it would be surprising if you could not find a reason to dismiss in these circumstances.  Take some good professional advice, particularly over process which inevitably throws up a couple of not insurmountable issues in such circumstances.
 

Martin Brewer can be contacted at [email protected] . 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.

Therefore you could treat this as frustration and confirm this in writing to him. Whilst it is not a dismissal, and therefore he would not generally have a right to appeal, you might be well advised to suggest that if he disagrees with the company’s decision to treat the situation as one of frustration he can write to you and outline the reasons he believes the decision is wrong. By doing this you will at least get an indication of whether or not he is going to try to mount a challenge to the decision.
 
As the crime is not linked to work, and he is not able to participate in a disciplinary process, I think this route would be much more complex, and potentially more open to challenge. Therefore I would favour the frustration route.

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

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Lucie Mitchell

Freelance journalist and former editor of HRZone

Read more from Lucie Mitchell
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