Employee could be getting sent down - what are my options?

SarEl

CFC wrote: »

LOL. Come off it on this one Sar-El, you can't equate calling all unemployed benefit scroungers with calling an offender a jailbird and a general bad egg. Of course I can. I did. I do not call people jailbirds and that is not what we were discussing anyway - I was disputing the posters assertion that nobody with a criminal conviction should ever be employed and was potentially dangerous to her or others. But I do not agree with you.

And until the conviction has expired, they are offenders, so you can't even call them ex-offenders. Where did I say otherwise - I used the term "offenders and ex-offenders"

I've been foolish enough in the past to give people a second chance, and never once has it worked out. So have I and it always has.

Nor do I agree that people who have been convicted of crimes have attituges, lack common sense or lack intelligence - or any more so than the general population share these attributes

SarEl

zzzLazyDaisy wrote: »

What you say may seem logical, but the courts don't necessarily agree with you. In employment law the courts have moved away from frustration of contract as a cause of termination of employment, and for short prison sentences, an employer is on very shaky ground if they rely on frustration.

More and more, employers are expected to follow a fair procedure and to carry out a fair dismissal based on that facts, rather than relying on frustration of contract.

As an example, in the recent case of Prior v City Plumbing Supplies Ltd (EAT March 2012) it was held that an 18 week prison sentence was not long enough to frustrate the contract of employment, and that Mr Prior had been unfairly dismissed. In that case, the employee had been given a warning for bringing the company into disrepute when he was arrested for assault, and was then dismissed when he was sentenced to prison for 18 weeks for the same offence.

That scenario is not unlike the position that OP has found himself in.

I disagree - not for the first time, and there wouldn't be lawyers if there wasn'#t room for disagreement I think the two cases are very different. I think it is quite wrong to discipline somone twice for what is effectively the same crime, which is what happened here. But my understanding from the OP was that the prison sentence was for a period of 18 months, not 18 weeks, and that they had taken no action over the offence in the first instance so their issue was not with the conviction per se, but with the absence from work.

Lifeisbutadream

Sambucus_Nigra wrote: »

This is not the first time the OP has needed procedures. Some of us have long memories and can remember the apprentice the op had to fire.

Pardon?? I have never fired anyone !! We has problems with him a few year ago but he still works for us

Plus that's a different company !

Lifeisbutadream

paddedjohn wrote: »

A bit judgemental don't you think? Going to prison is punishment enough without people like you serving sentence on him aswell.

How is that judgemental ?? How do you run a business without employees ?

It's not like it wasn't his fault ! He should have done his community service !! And he shouldn't have commuted the crime in the first place !

Lifeisbutadream

paddedjohn wrote: »

Its got nothing to do with waiting for 3 months, the OP said they wouldnt want to employ anybody whos been to prison. What if the agency sent him a replacement that had been in prison for 6 months over 20 years ago? would the OP be in the right to send him packing?

It's got everything to do with putting the business on hold for 3 months !! If you read my posts I said we wouldn't dismiss if he didn't go to prison. I can't run a business when 50% of the staff are inside !

Lifeisbutadream

Sooki wrote: »

If he gets three months, he'll most likely serve half of that and could possibly be entitled to an electronic tag for some of that, so if he is a good worker maybe you could work out something together for a few weeks, i.e. hold the job open on £0.00 pay whilst you get an agency worker to cover for the time he's inside. Although I would be concerned why he didn't comply with the community service, should he have took time off work to attend for example and couldn't for some reason.
Not knowing the details is difficult but the person will find it really difficult getting future employment if he has no job to go back to.

If he goes down we can't hold the job open for him for a number of reasons.

I love how people are sticking up for him on here and I can't say what he did on a public forum but believe me it wasn't non payment of a fine


I had no idea that he hasn't done his community service an as he has had days off for it in the past I am none too happy either


If he goes to prison I don't want him back at work. To be honest I would quite like rid full stop but I can't do that unfortunately, perhaps we should have done more when he was first sentenced but I was Ill at the time and I didn't deal with it

Lifeisbutadream

zzzLazyDaisy wrote: »

What you say may seem logical, but the courts don't necessarily agree with you. In employment law the courts have moved away from frustration of contract as a cause of termination of employment, and for short prison sentences, an employer is on very shaky ground if they rely on frustration.

More and more, employers are expected to follow a fair procedure and to carry out a fair dismissal based on that facts, rather than relying on frustration of contract.

As an example, in the recent case of Prior v City Plumbing Supplies Ltd (EAT March 2012) it was held that an 18 week prison sentence was not long enough to frustrate the contract of employment, and that Mr Prior had been unfairly dismissed. In that case, the employee had been given a warning for bringing the company into disrepute when he was arrested for assault, and was then dismissed when he was sentenced to prison for 18 weeks for the same offence.

That scenario is not unlike the position that OP has found himself in.

The OP is a she :-)



This is a very similar situation. Thanks for that

Sooki

I wasn't sticking up for him just giving another perspective that may help you, I was just also going to say that if he was a good employee you could ask for the employment issues to be considered by the judge which may help prevent jail.

obviously he is an adult and how he conducts himself outside of work is not your responsibility, and by the sounds of it there are other issues at play in the work place.

Sambucus_Nigra

Lifeisbutadream wrote: »

Pardon?? I have never fired anyone !! We has problems with him a few year ago but he still works for us

Plus that's a different company !

But you had issues and wanted to fire him.

My point being that you didn't learn from having a lack of procedures for discipline and grievance and as soon as you are a company - you need them.

Uncertain

Lifeisbutadream wrote: »

The OP is a she :-)



This is a very similar situation. Thanks for that

Then you need to be very careful and, as I suggested earlier, do things properly.

By the sound of it you have not conducted any disciplinary process as a result of the original conviction so you have lost that opportunity.

Given that this is all part of the same offence your only option now is frustration of contract. As Daisy has pointed out a short sentence may well not be enough.

I would suggest you get some legal advice before you compound your problems by making a costly mistake.

Remember your employee will be represented by a lawyer at the sentencing hearing. Whilst their function is not to advise him on his employment situation he will no doubt get one or two pointers about his rights.