News Article

The tribunal has found that a small employer unfairly dismissed an employee who was sent to prison for six months. What did the employer do that rendered the employee’s dismissal unfair? 

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Unfortunately, there are times in employee’s personal lives, where they may end up in prison. If they commit a serious crime this can be for years at a stretch, but lesser criminal offences attract much shorter sentences, perhaps for a few weeks or months. During that time the employee will be unable to attend work but, as one employer has just found out, if you want to dismiss in these circumstances yet fail to do so correctly, you could end up in a spot of bother and on the wrong side of an unfair dismissal claim. 

Joseph Carter (C) began working for Aulds Bakery (AB) in 2005. On 9 September 2013 he was found guilty of breaking the speed limit on the M8, changing lanes when it was unsafe to do so and behaving in an abusive manner by shouting, swearing and challenging members of the public to fight. Having committed these criminal offences, C was sentenced to six months in prison. His partner contacted AB to advise them what had happened but, at that particular point, C did not make any contact himself. 

In early November 2013, having served two months, i.e. one third of his sentence, C was released from prison and contacted AB to arrange his return to work. However, on 13 November 2013 he received a letter terminating his employment. This was on the grounds that he had “frustrated” his employment contract due to his imprisonment. C claimed unfair dismissal and in May 2016 the tribunal upheld his claim. 

The tribunal found that AB had made two mistakes. Firstly, it had ignored the Frustration of contract is a legal concept. It refers to an event which: (1) wasn’t reasonably foreseeable; (2) isn’t under the direct control of either party; and (3) makes any further performance of the contract, as it was originally intended to operate, impossible. Where these three factors exist together, an employment contract can be lawfully terminated but this genuinely only arises in a few limited situations. These are: in the event of an employee’s death, a legal change that makes the parties’ original contract illegal (which is rare), imprisonment that is long term in relation to the employee’s length of service – frustration of contract cannot be relied on where there is a comparatively short sentence. 

On the facts, C’s imprisonment was not considered to be long term – he had been employed for eight years. In addition, AB’s frustration letter was sent following his release, at a point when he was able to return to work and continue performing his contract. This ruling doesn’t mean you can’t dismiss those who are sent to prison short term. What you must do in these situations is follow the Acas Code and stay away from frustration. 

For any further advice or information please contact the team here at SFB Consulting .Our offices are based in Bishop’s Stortford and London, but we offer our services and consultancy UK wide. 

T:01279 874 676 

E:info@sfb-consulting.com