“We have an employee who has recently been arrested and charged with a criminal offence after becoming involved in an altercation outside a bar during the festive period. The employee is currently remanded in custody, awaiting trial and is therefore unable to fulfil their work duties. We are understaffed as it is and do not know how we are going to manage with one less employee on the team. How should we approach this?"

In circumstances where an employee is in prison, various difficulties arise for employers, the most evident being that the employee is unavailable for work. Despite operational difficulties, there is also a risk that as an employer you/the business could face reputational damage if ongoing criminal proceedings are reported in the media and the name of the employer is disclosed.

Before taking any steps, there are factors that you should carefully consider such as: the nature of the alleged offence, the duration of any remand period or sentence likely to be imposed, the ability to retain the role and the employee’s general circumstances. It is imperative to remember that while the employee has been arrested and remanded in custody, they have not been convicted.

As an employer, your options include; hiring a temporary replacement, holding the job open, offering alternative employment, or considering disciplinary action up to dismissal.

At this stage, given that the employee is on remand, the potential period of absence is unknown. Ultimately, in the event a sentence is passed, this will provide clarity on the length of time the employee will be absent from work. A longer sentence is more likely to frustrate the contract of employment (i.e. 12-18 months) as opposed to a shorter term of imprisonment. It may be prudent to wait until there is further development with the criminal process, as a custodial sentence might not be imposed and the employee could return to work.

You should seek as much information as possible and depending on your operational needs, you could hire a temporary replacement to cover the employee’s current absence. You should also consider whether you could reasonably hold the employee’s position open until their return or offer them alternative employment. There may be instances where the employee’s conviction prevents them from carrying out their duties (i.e. loss of driving licence for a delivery driver), however this may not preclude the employee from working in another part of the business and you should consider alternative roles before moving to dismiss the employee.  In these early stages of the criminal process, it is difficult to determine whether these options are realistic to meet your business demands, although it is advisable that you consider alternatives where possible.

If following a trial the employee is convicted and sentenced, there is an argument that the employment contract could be deemed frustrated and effectively terminated as the employee is unable to fulfil their contractual obligations. You should however bear in mind that a term of imprisonment does not automatically frustrate the employment contract, whether it does so will depend on circumstances such as:

• Is it commercially necessary to employ a replacement? Could the post be held open or alternative employment offered?
• Can the employee’s likely length of absence reasonably be foreseen?
• Is it more reasonable to engage a permanent or temporary replacement?

If you believe the employee’s alleged conduct is so serious in nature that it merits disciplinary action you could carry out a full investigation into the facts. You might wish to wait to ascertain if the employee admits the alleged offence. You should keep in mind however that a police investigation, criminal charge, conviction related to off-duty conduct, or even an admission of guilt, will not absolve you of the need to undertake a full and fair investigation. While this may be difficult due to the employee’s incarceration, you must take all reasonable steps to do so. If you consider the alleged conduct is so serious that prompt action is required, you may not want to wait until the criminal process has concluded. You should however be able to demonstrate why such urgent action was required before the employee’s guilt was established. Therefore, you must consider whether the alleged criminal offence has any impact on the employee's suitability for their job, their relationship with their colleagues, the business or clients, or amounts to a breach of contract. As always, when conducting a disciplinary process, you should adhere to your respective policy and procedures and follow the statutory dismissal process.

Regardless of a finding of guilt in the criminal proceedings, a failure to adhere to the 3-step dismissal procedure, could result in the dismissed employee bringing a successful claim of unfair dismissal in the industrial tribunal.