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

jobbingmusician

zzzLazyDaisy wrote: »

To be fair the comments about hiring ex-offenders are a bit off topic. OP knew that the employee had a criminal conviction and continued to employ him. So whatever that conviction was for, OP did not consider the offence serious enough to dismiss him.

No-one has picked up on my original point, though, which may or may not be correct (I would like to know! )

OP knew that the employee had a criminal conviction and continued to employ him. Since then, the employee has committed ANOTHER offence - one serious enough to justify potential imprisonment. I hope that the OP said SOMETHING to him after offence 1 (along the lines of 'keep your nose clean') - in which case whatever the frustration of contract, or not, I would suspect the OP has grounds to instigate GM.

(I'm NOT arguing against the OP getting a bit of proper, paid for advice though!)

Ooops, now slightly out of date, as my computer refused to post this 5 mins ago...

zzzLazyDaisy

jobbingmusician wrote: »

No-one has picked up on my original point, though, which may or may not be correct (I would like to know! )

OP knew that the employee had a criminal conviction and continued to employ him. Since then, the employee has committed ANOTHER offence - one serious enough to justify potential imprisonment.

I think we have to be clear about this, as it does make a difference.

If someone is given CS, it is because the offence was serious enough to warrant a prison sentence, but the court is of the view that community service will have a sufficient deterrent effect. If someone fails to comply with community service, they are called back to court and, unless there is good reason for them missing the CS, they may be sent to prison for the original offence. In other words, failing CS is not an offence in itself, it is a failure to comply with the original punishment without good reason, so a different punishment (prison) is imposed. It is all part and parcel of the original offence.

Lifeisbutadream

SarEl wrote: »

Really? But what you have repeatedly described - at least at first - was quite different. If it is, in fact, a very similar situation, then it is quite different from what you described, and therefore I agree with zzzLazyDaisy: not only must you use the disciplinary procedure, but it is entriely possible that a dismissal may be ruled unfair unless you are exceedingly careful.

I mean the crime is similar. We havent disciplined him for anything.

Lifeisbutadream

jobbingmusician wrote: »

No-one has picked up on my original point, though, which may or may not be correct (I would like to know! )

OP knew that the employee had a criminal conviction and continued to employ him. Since then, the employee has committed ANOTHER offence - one serious enough to justify potential imprisonment. I hope that the OP said SOMETHING to him after offence 1 (along the lines of 'keep your nose clean') - in which case whatever the frustration of contract, or not, I would suspect the OP has grounds to instigate GM.

(I'm NOT arguing against the OP getting a bit of proper, paid for advice though!)

Ooops, now slightly out of date, as my computer refused to post this 5 mins ago...

The original offence was not commited during work time and I have not got involved in it to be honest, I wasnt very pleased at the time, but he got his CS which I supported and told him he could have time off to attend.

We wrote a letter for him twice to miss CS as he was working away for us, but I would have expected him to carry on doing it.

He was told a while ago apparantly that if he didnt attend he faced prison but he chose to not do his CS.

SarEl

I think that the problem here is that the OP seems to be unclear. It originally appeared, although I am not longer sure this is true, that the OP is not concerned about the crime and does not see it as at all relevant to the employment, and therefore a disciplinary is clearly not required or called for because the OP appeared to have no issue with this. The sole matter was (potential - assuming the OP is correct about the prison sentence) enforced absence from the workplace over a prolonged period. If that is the case and is the only matter, then I still think that frustration of contract is the appropriate option - taking this route does not mean that the employer should not give an opportunity to the individual to comment or fully consider their arguments if they have any. I simply do not see it as a disciplinary matter.

However, this is either not the only matter in question, or the OP has an inability to seperate what they personally think about the situation from the purely contractual matter, and has now made several statements about the actual crime and/or punishment. Do this is a court of law when you are being questioned by a lawyer and you open the door to exactly the argument that zzzLaztDaisy is using - and quite correctly - that this is a dismissal which is unfairly conducted because it is dressed up as something else.

And at that point I can't see anything that I can add to the OP's situation other than to repeat that this is perhaps not the time to be thinking that they can save money on legal bills.

zzzLazyDaisy

Lifeisbutadream wrote: »

Thank you ! really appreciate that, I was hoping it was as simple as that

If he doesnt get sent down I wont dismiss, so that wont be a problem.

OP, this is your problem. You didn't view the original offence as sufficient to dismiss him; and you don't view the failure to attend CS as sufficient to dismiss (regardless of any dishonesty that might be involved in taking time off and not attending the CS).

Your reason for dismissal would be the fact that he would be absent from work, in prison, for around 6 weeks or so, plain and simple. That will almost certainly not be viewed as frustration of contract, and, on its own, is probably unlikely to be viewed as a fair reason for dismissal.

To make matters worse, you appear to be adopting a 'wait and see' approach, which means that you are denying yourself (and the employee) the opportunity of following a fair procedure and conducting a full investigation. Since you know now, that prison is a possibility, if you simply do nothing, and then dismiss him once he has gone to prison, you will fall foul of the duty to follow a fair procedure.

You really need to seek legal advice if you are proposing to dismiss this employee, to make sure that you go about it in a lawful manner, and don't inadvertently fall foul of quite a complex area of employment law.

I don't really think I can usefully add any further comments about this, so I am not proposing to contribute further to this thread.

Good luck OP.

Dx

SarEl

zzzLazyDaisy wrote: »

OP, this is your problem. You didn't view the original offence as sufficient to dismiss him; and you don't view the failure to attend CS as sufficient to dismiss (regardless of any dishonesty that might be involved in taking time off and not attending the CS).

Your reason for dismissal would be the fact that he would be absent from work, in prison, for around 6 weeks or so, plain and simple. On its own, that is very unlikely to be viewed as a fair reason for dismissal.

To make matters worse, you appear to be adopting a 'wait and see' approach, which means that you are denying yourself (and the employee) the opportunity of following a fair procedure and conducting a full investigation. Since you know now, that prison is a possibility, if you simply do nothing, and then dismiss him once he has gone to prison, you will fall foul of the duty to follow a fair procedure.

You really need to seek legal advice if you are proposing to dismiss this employee, to make sure that you go about it in a lawful manner, and don't inadvertently fall foul of quite a complex area of employment law.

I don't really think I can usefully add any further comments about this, so I am not proposing to contribute further to this thread.

Good luck OP.

Dx

Ah - my bad. I misread an early post and thought the OP said that the sentence was likely to be 18 months - not 6 weeks (which could be covered by holiday!). Hence the frustration of contract.

zzzLazyDaisy

SarEl wrote: »

Ah - my bad. I misread an early post and thought the OP said that the sentence was likely to be 18 months - not 6 weeks (which could be covered by holiday!). Hence the frustration of contract.

Just for the sake of transparency - OP originally said that the employee might be sent to prison for three months. But in real terms he can be expect to be released after serving half the sentence - hence my reference to the likelihood of him being absent from work for 6 weeks.

Okay, I really am out now!

Dx

Lifeisbutadream

SarEl wrote: »

Ah - my bad. I misread an early post and thought the OP said that the sentence was likely to be 18 months - not 6 weeks (which could be covered by holiday!). Hence the frustration of contract.

He has used all his holiday and it is our busiest time of year.

I cant say much more about the actual case, but there is a lot more to it than I have been able to put on here. If he gets sent down I dont want him to come back to work. Our customers will know, because of who we are and what we do and it will do our business a lot of harm

Uncertain

Lifeisbutadream wrote: »

He has used all his holiday and it is our busiest time of year.

I cant say much more about the actual case, but there is a lot more to it than I have been able to put on here. If he gets sent down I dont want him to come back to work. Our customers will know, because of who we are and what we do and it will do our business a lot of harm

Sorry but you are completely missing (or choosing to ignore) the points that are being made.

One last attempt!

This chap was convicted of a crime. You may have been justified in dismissing him as a result but you didn't. You have now lost that opportunity.

He was sentenced to community service as an alternative to prison.

He has (apparently) failed to fulfil the community service so, as a result, may now be sent to prison. That is not a new crime, it is still part of the old one!

If it is a short sentence he is unlikely to have frustrated his contract (as the EAT has ruled in a similar case). If you dismiss him and he takes you to a tribunal the dismissal MAY be ruled unfair.

If you want to try and dismiss this chap then I strongly suggest you see a solicitor and go about it properly. It may well be cheaper in the end.