What to do if an employee is sent to prison
Employers, from time to time, have to deal with the situation of an employee receiving a custodial sentence. In such an unprecedented situation it is important to remember that Employment Law is not always superseded by Criminal Law – often employers assume they can simply dismiss the employee in their absence.
However, employer should, in the first instance, revert to their written disciplinary procedure:
- Deal with issues promptly, without unreasonably delaying hearings, decisions, or confirmation of those decisions
- Act consistently when making disciplinary decisions.
- Carry out any necessary investigations to establish the facts of the case.
- Inform employees of the matters being investigated and give them an opportunity to put their case in response before any decisions are made.
- Allow employees to be accompanied at any disciplinary hearing.
- Allow an employee to appeal against any disciplinary decision made.
There may need to be an adaptation of the “normal disciplinary process” if the employee is unavailable due to their imprisonment. This might go so far as to include visiting the employee in prison to take a statement of events. Only once the case has been fully investigated should a final decision be made as to whether to dismiss them. This decision should not focus solely on the fact that the employee has been imprisoned.
Each case will need to be decided on its own set of facts, for example, if the employee is imprisoned for a short period of time, for an offence that’s unrelated to their work, it may be reasonable for the employer to hold the employee’s job open pending their release.
Even in cases where the conviction and period of incarceration has a significant bearing on the employment relationship and the employer’s business, such that dismissal is unavoidable, the employer must still follow a fair process and provide a right of appeal. If an employer acts with total disregard for any disciplinary procedure a tribunal is likely to find that any dismissal is unfair.
In the case of Harvey v Vista Hotels Ltd (ED002/15), the employee succeeded in a claim for unfair dismissal even though he was imprisoned for a period of 18 months for grievous bodily harm. As a result, Mr Harvey was awarded £11,000 for unfair dismissal.
The tribunal stated that “the complete absence of a disciplinary process with no right of appeal did not fall within the band of reasonable responses open to an employer in justifying the fairness of a summary dismissal on the grounds of gross misconduct.”
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