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Derek Edwards
Member - 2 posts
Hi,
We have an employee who is currently on a final written warning for repeatedly not being on time for work. He has now been sent to prison for 8 weeks and lost his license for six months.
We're a transport company and he has lost his license for speeding. He received a custodial sentence for perverting the course of justice (hiding number plate, twice).
With him being in prison how do we stand with regard to terminating his contract? He lives over 20 miles from work and starts at 04:00 am, there is no public transport and he has already stated that if he loses his license he will be unable to attend work. Do we have to wait until the end of the prison sentence before we do anything?
Your help is appreciated.
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James Fairchild
Member - 217 posts
Will he (in theory) have a licence the day he comes out of prison, or will the ban still be in force then? I realise you've said 8 weeks in jail and 6 months ban, but I'm just checking that they both started from the same point in time.
If still banned, this would probably be a fair dismissal, but if he still has his licence then I can't see how the imprisonment (in itself) is grounds for dismissal.
In regards terminating his contract, how can you follow process (call a meeting etc) whilst he is in prison?
Out of interest, am I right in assuming that he's not being paid anything whilst inside? Finally, how long have you employed this person?
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Derek Edwards
Member - 2 posts
His ban started on the same date he was sent to prison. He's been told he's likely to serve 4 weeks. He's not being paid as of now, as he was signed off sick, but was due to return to work yesterday.
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Rachel Winterbone
Member - 2 posts
Hi Derek,
I would have thought "Frustration of Contract" would apply here. He has been employed by you to do a job, he can no longer do taht job either because he has been sent to prison or due to the loss of his licence.
Either way, if someone is sent to prison for 8 weeks or 8 years the same principle applies. I would send a letter stating the grounds for dismissal as Frustration of Contract.
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Bozena Benton
Member - 50 posts
Frustration of contract is strongly not advised for such a short period of time. Case law suggests that the custodial sentence must be of a signiificant period for frustration to apply
Regardless of whether he sent in a sick note - the reason for non-attendance is his custodial sentence and therefore you can withold wages/salary due to a breach of contract i.e. non-attendance
You should consider invoking the capability process if he is still banned from driving once he is released and returns to work. You could schedule a meeting whilst he is in custody but must give him the opportunity to send a representative or submit a written statement of defence. However, as the sentence served is only likely to be 4 weeks and I would have thought by now he has served some or most of it - it would be reasonable to schedule it for when he's released. If you follow the capability route you must consider before dismissing whether there is any other job he can do for the duration of the ban
You may also want to consider whether he has brought your company into disrepute especially if the offence(s) was/were carried out whilst at work - this would be a disciplinary matter and most likely deemed gross misconduct
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