My Employee is in Jail, What Do I Do?

The first steps for managing an employee in jail

It won't happen often, but when faced with this situation you should consider the:

• nature of the offence committed

• duration of the sentence (remembering that offenders normally serve only a half of their sentence)

• type of role performed by the employee

• impact the conviction has on the organisation and its reputation

• employee’s previous track record and employment history.

This is not a full list of factors, but generally you need to consider all the issues related to the employee’s conviction.

When considering contract terminating an employee in jail

If an employee gets a long custodial sentence, an employer may argue the employee’s employment contract has been ‘frustrated’. This means 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. As this type of termination is not considered a dismissal, the employee cannot bring a claim for unfair dismissal.

Employment Tribunals reflect poorly on an employer, should you choose this route. It is generally advised to take the disciplinary action or dismissal route. Dismissal If an employee is sent to prison, it may be fair for the employer to dismiss the employee. A dismissal will be considered legally fair when an employer can show that the reason for the dismissal was:

• related to an employee’s conduct

• related to the employee’s capability or qualification for the role

• redundancy

• a statutory restriction that prevents the employment continuing

• some other substantial reason that justifies this action.

The fact your employee has been sent to prison could come under ‘some other substantial reason’. On this basis, if the employee has been handed a long prison sentence, it may be fair for you to dismiss on the basis the employee will be unable to perform the duties set out in their contract of employment.

Alternatively, it may be fair for you to dismiss the employee because of their conduct. For example, an employee’s role may involve handling money and having access to the employer’s bank account. If they have committed a crime such as fraud or theft, then no one would reasonably expect they could continue in that role for you.

Importance of fair procedures

Failing to follow a fair procedure is where it can all go all wrong for employers. Before you decide whether dismissal is the best course of action, you must consider all the facts and, if possible, try to get the employee’s views.

A case from early 2016 serves as a warning to employers. An employee had worked for his employer for a number of years. He was sentenced to six months in prison for dangerous driving and public disorder offences and was released from prison after just two months. When he returned to work, he was given a letter terminating his employment on the basis that his employment contract had been frustrated.

The employee contested this and the Employment Appeal Tribunal (EAT) made it clear that the employer had not followed correct procedures. The employer had got it wrong in sending out a dismissal letter without conducting any form of investigation. The EAT also stated that the employer could not rely on frustration because when they gave the employee the letter, the employee was already out of prison and he could return to work and fulfil the contract. Avoid mistakes like this.