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!
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.
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.