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Martin Brewer

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Ask the expert: Employee sent to prison. What do we do?


This time the experts, Esther Smith and Martin Brewer give their advice on what to do when an employee goes to prison…

The question: Employee sent to prison. What do we do?

We have an employee who has just been sent to prison for four to six years. The MD spoke to him beforehand and it was agreed that whilst we couldn’t hold a job open for that period of time, we would see him when he got out to re-employ him. Nothing held in writing though.

He wasn’t a great employee, but no formal warnings are registered against him now, he’s just ‘high maintenance’! He has completed three years’ service.

What paperwork do I need to complete – do I issue a P45? or could that lead to a claim for unfair dismissal. We will have to take someone else on…let’s say he serves two years, will we have to make someone redundant in order to take him back? I wish there was some kind of clear protocol for some of these things – it’s very confusing!

Legal advice:

Martin Brewer, partner, Mills & Reeve

The fact that your employee has been sent to prison does not mean he isn’t still your employee. You will have to terminate the employment should you wish. You would be able to justify this on the basis that you need the work done and the employee is not available. Technically this would be ‘some other substantial reason’. 
It is unlikely that the comment about ‘seeing’ him when he gets out amounts to an enforceable promise to re-employ him, so when dismissing him make it clear that all that is on offer is that he should come and speak to you at the time and you will see if there is anything suitable.

Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.


Esther Smith, partner, Thomas Eggar

Thanks for your question which is luckily, not an area we get asked about too often! Where an employee is sent to prison for a prolonged period, as is the case here, the law regards the employment contract as “frustrated”; by the supervening event of the employee’s imprisonment he is unable to carry out his contractual duties. This is important as it is not considered a “dismissal” in law, and therefore the employee is prevented from bringing a claim of unfair dismissal.

Therefore you need to issue a P45 and treat the employee as a leaver, as you would in a resignation situation, although no notice is due to the employee.  The employee should get paid in lieu of any accrued holiday on termination.

Luckily we do not appear to have guaranteed this employee a job on his release from prison, but have confirmed that if he comes to us, we will see what we can do. This is great, as it gives us no obligation to re-employ him when he is released, and indeed give what you say about his performance, why would we want to!

It also means that we can recruit a replacement for him without being concerned about having to let that employee go at a later date. 

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

5 Responses

  1. Frustration

    The law of Frustration is limited but in this case is highly apprpriate hence my preference for Martin’s advice on this occasion.

    We really did/do get in a tangle about procedures sometimes

    Just because something is not often used does not reduce its appropriateness

  2. Employee sent to prison.

    Conflicting advice from two experts. I am not a lawyer but feel that dismissal with notice pay on grounds of "some other substantial reason" would be safer than reliance on frustration of contract.

    Jeremy Thorn should never question his feelings about what are the right things to do for his employees and their dependants. He is an example to managers everywhere. Long experience of employee relations has taught me that, if you do what is right for your people, they will support you when times are hard. I wish he had been my boss.

    Bob Patchett

  3. Your former employee and his dependants.

    Leave aside the legal techicalities for a moment, important though they are. It is a difficult  question to which my answer is a series of questions:-

    Do you want to be, and be seen to be a caring employer ? Are you going to provide moral support to his family ? Do you want to give some tangible support to his family ? How will you avoid setting  what could be an expensive precedent.?   Will you visit him in prison?  Do you have support arrangements for others who become incapacitated ? Do you have a company benevolent fund or charity and what line will they take ?  Do you want your work force to be your ‘family’?

    Your decisions will tell your employees what sort of employer you are and that will affect in some ways  what your people will do for you when times get tough.  Your choice., but when you decide your line you will have to stick with it.



  4. Gone to Gaol… Beyond the law.

    I faced this very same problem quite some years ago as a MD. (When you manage a large number of employees, it must be statistically inevitable that you will meet this and many other such situations over the years; including not just ‘ordinary’ life-time events amongst your employees, of their marriage, new babies, retirement, illnesss or death, every year; but illicit office affairs, fraud, suicide, personal bankruptcy and all manner of other expressions of our human condition..)

    In the similar situation I faced, of an employee being sent down for a very long sentence that had nothing to do with his work, at that time he was legally deemed to have terminated his contract of employment.  But I was personally much more concerned for his aged, widowed and disabled mother with whom he lived in an inner-city tower block and for whom he was the sole carer and provider. For me, this wasn’t a contractual matter for the company but one of a decent social duty of care to a (one-time) employee’s close family member who was a completely innocent victim. 

    Rather sadly I feel, I was alone in feeling this way amongst my Board at the time; and when I discuss this issue more adstractly in business-ethics workshops even nowadays, I find I am often still in the minority.  "Not the company’s responsibility!"; everyone cries!  And maybe not… 

    But when colleagues get married, have babies, fall ill, retire or even die; caring and responsible employers don’t even think twice about showing an interest in the wider family’s well-being, if only out of humanity and good-neighbourliness – and without any accusations of corporate paternalism, or substituting for the Caring Services. 

    So what is the difference between these situations and an extreme case of a colleague going to gaol? 

    And what would your own moral position be, even if not your company’s?


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