This week Vicky Pryce, ex-wife of former Lib-Dem cabinet minister Chris Huhne has been found guilty of perverting the course of justice by taking speeding points on his behalf. Both parties face a term of imprisonment.
What steps does an employer take when he discovers that an employee has been sent to prison? You might think that such an event must automatically bring the employment contract to an end. It’s not that easy (it never is with employment law is it?).
If an employee has been given a long custodial sentence, his employer may be able to argue that the contract of employment has been frustrated, i.e. the employee being unable to perform his contractual duties at all for a period. Courts work to entirely different timescales to the rest of us. I have heard employment tribunals talk about sickness absence and say things like:”But he’s only been away for three years!” as if that was the blink of an eye.
The fact that the employee is in prison and is not able to attend for work to do his job is not necessarily enough to 'frustrate' the contract. In general employment tribunals don’t like finding that the contract of employment ended for this reason. Case law suggests that absence must be fairly long if you are to treat the employment contract as frustrated. If the sentence is for three or four months, I’d err on the side of caution and treat the employment as continuing (not least because parole means that approximately a third of the sentence will not be served).
Even if an employee has been imprisoned, investigate the circumstances before making any decision. If you conclude that dismissal is appropriate, it has to be for a fair reason. If the reason for which the sentence is being imposed relates to the workplace, or gives you reasonable grounds to doubt the employee's continuing suitability to work for you, you might be able to rely on conduct or some other substantial reason as grounds for dismissal.
And finally, remember that prison or no prison, you have to follow a fair procedure. Trying to do that if the employee is already in prison could be a challenge.
It may be that you consider that the circumstances of the imprisonment reflect adversely on the image of your business. While most employment contracts now make provision to sanction employees who bring their employer into disrepute, if the wrongdoing resulting in the prison sentence took place outside work and doesn’t affect the employee’s ability to do his job (one he gets out!),you may need to tread very carefully. Taking disciplinary action based only on your personal disapproval of an employee's out-of-work behaviour is likely to risk claims of unfair dismissal.
Take the case of the Post Office worker who was dismissed as a result of his conviction for violence during the 1998 football World Cup in France. Mr. Liddiard admitted that he had thrown bottles at the Tunisian fans and was charged with assaulting a police officer with aggravating circumstances. He was tried and convicted in France and sentenced to 40 days imprisonment. At the time, there was a ‘name and shame’ approach and Mr Liddiard’s conduct and the fact that he was employed by the Post Office became a matter of public record.
His employer dismissed him on the grounds that his conduct had brought the Post Office into disrepute. Mr Liddiard argued that he had been unfairly dismissed. His claim was successful in the original employment tribunal.
The case eventually came before the Court of Appeal. It found that in reaching a decision to dismiss, employers are entitled to take into account newspaper coverage. The Court said that an employer is entitled to rely upon a conviction determined in France as much as a conviction in the UK courts. It remitted the case back to another tribunal giving guidance that the new tribunal should give particular care to what is meant by “bringing the company into disrepute”.
If an employer faces this sort of situation then potential relevant factors which should be considered (and which should be documented as having been considered) include:
- the type of job;
- nature of offence;
- status of the employee;
- whether the offence affects the employee’s ability to do job;
- what effect, if any, the conviction has on the employer’s business;
- the range and type of press coverage linking individual to the particular employer;
- degree to which the work involves contact with the public;
- the employee’s previous track record, length of service and disciplinary record.
As a last word, I always say escalate earlier than later and discipline if appropriate, but err on the side of caution with your sanctions.
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