You are the Managing Director of a small company. Unexpectedly, a long standing employee does not show up for work. You then discover that he (or she) has been sentenced to 6 months in prison. You dismiss him as he is unable to perform his duties. Is a dismissal in those circumstances fair?
This was the situation that faced the employer in Carter v Aulds Bakeries Ltd - a case that was recently before the Employment Appeal Tribunal.
Mr Carter was employed by Aulds from March 2005 until he was dismissed in 2013. He attended for work as usual on 8 September 2013 but did not show up the next day. His partner then advised Mr Marr, the Managing Director of Aulds, that he had been sentenced to 6 months in prison for offences of dangerous driving and public disorder. He was released early from prison on 5 November 2013. Shortly thereafter, he turned up at work, and was told that he could not return. He was given a letter of dismissal on 13 November 2013, on the basis that the contract of employment had been 'frustrated'. Frustration is an English legal concept that allows a contract to be set aside when unforeseen events render it impossible to perform.
Mr Carter issued an internal appeal against his dismissal to Aulds but this was unsuccessful.
He issued employment tribunal proceedings and the ET sitting in Glasgow found that the correct procedures had not been followed before dismissal and that the dismissal was unfair. However, the Judge found that because Mr Carter had not personally notified Aulds (as required by his contract), had not sought 'special leave' and because he had caused his own inability to attend work due to imprisonment, he had contributed to his dismissal. The Judge reduced the compensation by 100% - i.e. no compensation order was made.
Mr Carter appealed to the Employment Appeal Tribunal, sitting in Edinburgh. The EAT found that the reasons given for reducing the compensation by 100% were inadequate and the Judge at first instance had not properly considered the little used remedy of reinstatement. The EAT remitted to case back to the first instance Judge for reconsideration of remedy. It is now reported that that that Judge has decided that Mr Carter's losses because of the unfair dismissal would have been £14,000 but due to his contributory conduct the compensation should be reduced to £650. In other words, the Judge decided that Mr Carter was more than 95% responsible for his own dismissal.
The dismissal of an employee who is in prison will usually be acceptable. Had Aulds followed the correct procedure to dismiss, it is highly likely that the decision to dismiss would have been unimpeachable. The case goes to show the importance of an employer following a clear disciplinary procedure to dismiss an employee in these circumstances. One cannot help but feel sorry for the employer in this case - a failure to follow correct disciplinary procedures will have been very costly for them; the compensation awarded may only have been £650, but I expect that they will have spent many thousands of pounds in legal fees.
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