Labour Research November 2012

Law Queries


Q. Our member has been in a bit of trouble with the law. The upshot of this is that he has received a short jail sentence of 20 days. The employer has got wind of the sentence and says that it is going to dismiss him. Can it do this?

A. Being sent to prison can “frustrate” an employment contract. Whether the specific situation you describe has resulted in the contract being frustrated, such as to justify the employer dismissing your member, will depend on all the circumstances.

The fact that your member’s sentence is so short is very much in his favour. And assuming that 20 days is less than the contractual notice that he would be due from the employer if it did terminate his employment, it will be hard for the employer to argue that the contract has been frustrated.

If the sentence was longer and your member was the only person carrying out his function — a function which was essential to the employer’s operations — then the situation may be different.

If the employer were to proceed to dismissal, your member would obviously be on weaker ground, if the cause of the jail sentence was relevant to his work and likely to undermine relations with staff or clients.