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By David Sillitoe

Feb 1st, 2019

What can an employer do if an employee is sent to prison

Fiona Onasanya, an MP and a Solicitor, has become the first sitting member of parliament in nearly three decades to be jailed, after she lied to police over a speeding ticket. She has been sent to prison for 3 months.

Incredibly, she remains an MP (if her sentence was for 12 months or more she would have lost her seat). As she has appealed, constituents cannot force a bi-election.

Employers can find themselves in a difficult position if an employee is sent to prison, in particular where the employee has 2 years’ service and so has Unfair Dismissal rights.

Frustration?

Under the doctrine of frustration, a contract may be discharged when something occurs which renders it impossible to fulfil.

However, in the employment context the law provides for express rights around notice and Unfair Dismissal. Relevant case law dealing with frustration is mostly from the 1970s and 1980s. It is doubtful that, with the additional protections that have built up since then, a Tribunal would be open to the argument. Much will depend on the facts, however; in particular the length of the sentence.

As Ms Onasanya has been sentenced to a relatively short 3 months, it is unlikely that an employer would be able to rely on frustration.

Gross Misconduct?

The offence of which the employee was convicted may amount to gross misconduct. If so, the employer may be able to dismiss without notice.

However, the offence may not fall squarely within what amounts to gross misconduct at the organisation, especially if there is no connection between the criminal conduct and the employee’s job.

There is also the practical complication of investigating whilst the employee is in prison.

An employer should endeavour to act reasonably, which will involve conducting a proper investigation and seeking to consult with the employee, even if this has to be done by letter or telephone. ACAS guidance states, “An employee should not be dismissed or otherwise disciplined solely because he or she has been charged with or convicted of a criminal offence. The question to be asked in such cases is whether the employee’s conduct or conviction merits action because of its employment implications.”

A dismissal will only be fair if it is within the range of reasonable responses. Consideration will need to be given to what effect the conviction has on the employee’s suitability to do the job and their relationship with their employer, colleagues and customers. Employers may need to consider whether, depending on the length of the sentence and in light of the needs of the organisation, the employee's job can be held open.

Turning again to Ms Onasanya, it is hard to conceive of any sensible argument that having a conviction for perverting the course of justice would be compatible with being an MP.

Time Limits

The time limit for an Unfair Dismissal claim is 3 months. However, the Tribunal can extend time where it was not reasonably practicable for an employee to bring a claim within the time limit; for example, because they were in prison. Therefore, employers might have to wait until after release in order to find out if the employee intends to challenge their dismissal.

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