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chris wynn
Member - 2 posts
could anyone help on this one ,,, a work colleague may be sentenced soon and serve a sentence that may only be a couple of months,, he is worried more than anything that he will lose his job when he is released.
is there any enployment law that protects him from losing his job???
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Martin Brewer - Mills & Reeve
Online advisor - 80 posts
there are no special provisions in such a case. Your colleague has the same protection against unfair dismissal that anyone has. So if he is dismissed the questions will be first was there was a potentially fair reason for the dismissal, second was a fair process followed and finally was the dismissal reasonable in all the circumstances.
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john walford
Member - 2 posts
Thier would be a fair reason to dismiss this employee, but only when he has been incarserated due to the fact that he would be in breach of his contract. In other words the contract maybe frustrated, unworkable.
John Walford
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Bozena Benton
Member - 50 posts
Care needs to be taken when using frustration as argument for ending a contract of employment due to being incarcerated for short-term sentences. It needs to be remembered that `frustration of a contract' in effect means that there was neither a resignation nor a dismissal but that the contract came to an end through no action from either party as in death of an employee. The employer should if be looking at dismissal as the safest route ensuring that they follow the statutory procedure (albeit usually in the absence of the employee).
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Colin England
Member - 55 posts
With respect the current rules require that the employee is consulted and is present at any disciplinary hearings. It would be "automatically unfair" to dismiss him/her without giving him/her a fair hearing. He might be able to plead a special case for mitigation of his (criminal?) offence or he might be able to so impress his employers with his acceptance of his guilt and promises of reform that heshould reasonably be retained in employment.
His wife/partner or someone else might wish to appear before the diciplinary meeting and convince the panel that he would behave in the future. It may be that to dismiss him/her would be unreasonable.
Also the employer must have regard to what the contract says. It is unlikely to say that if someone is sent to prison he is deemed to have been in breach of his contract of employment.
A reasonable employer properly advised might well allow him/her to take up his employment when he is released.
Look at the case law on this subject and you will find it is full of traps for the employer.
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chris wynn
Member - 2 posts
well thank you to all who replied, I actually approached the manager of the individual concerned and told me this was a case for the hr dept to deal with. Guess what hr are reluctant to see this person and told me they will have to await the outcome of the sentencing by that time he will either be a free man or incarcerated. Typical of a local authority hr dept!!! If anyone does have any more advice it would be greatly appreciated.
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James Fairchild
Member - 210 posts
Chris,
I think there was another thread on here (I can't find it) during which one member posed the comment that the courts do the sentancing, and that the community (including employers) do the rehabilitating.
If we are talking only a few months then I suspect many companies would keep the job open if there were sickness or a request for family leave/sabbatical/long vacation of a similar duration.
Obviously the nature of the offence may be relevant, if the alleged crime was something violent then that might affect the companies range or reasonable responses than if it were an unpaid fine (for example).
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