Unlucky prison break for employer

A Scottish bakery employee has successfully persuaded an employment tribunal to award him compensation, having been dismissed for not turning up at work for two months.

The reason for his non-attendance? He had been serving a two month prison sentence.

It is reported that, on his release from prison, the employee got back in touch with his employer whose only response was to send him a letter saying that his employment had been terminated as his contract had been ‘frustrated’.

Leaping to that conclusion, without following any process (e.g. giving the employee an opportunity to explain his circumstances), was held to have been unfair.

The case is an example to employers of the need to follow proper procedures, even if the outcome appears at first sight to be a foregone conclusion.

In the relatively rare event that an employee has to serve a prison sentence, the best course for the employer is to treat the situation as a case of unauthorised absence and follow its published disciplinary procedure.

Scenarios which are more likely to occur might be catching an employee ‘red-handed’ committing a disciplinary offence, or an employee admitting to such an offence during an investigatory meeting. Where this happens employers still need to remember to carry out the process to its conclusion. In the case of a disciplinary, that means holding a further meeting where the employee has told in advance of the allegation against them and the evidence relied on. It may well be that there is some reasonable explanation for the conduct, or at least some mitigation, that the employee is able to offer.

Employers who act without giving the employee that opportunity run the risk of an unfair dismissal finding.

There is some good news for employers to take away though. This case also illustrates something that has been discussed in this newsletter before, i.e. the fact that, even where an employer has failed to follow a fair process, if the employee has contributed to their own downfall or the lack of a fair process made no difference, that can be reflected in the compensation award. In this case an award that could, reportedly, have been in the region of £14,000 was reduced to little more than £600.

So at least the bakery saved a little dough.

Dominic Bonham