Frustration Of Employment Contract

The arrest and release of a supermarket worker for the murders of five prostitutes highlights the problems faced by employers when employees are accused or suspected of a crime. Is there a duty to keep the job open while the person is under investigation? What happens if they are arrested but not prosecuted?

The crucial point, before considering disciplinary action is that the employee is innocent until proven otherwise.

Also note that the burden of proof in criminal courts is greater than that required by an employment tribunal in considering whether a dismissal is fair. The prosecution must prove "beyond a reasonable doubt" that the person is guilty of the offense that the employer must only prove negligence "on the balance of probabilities", ie more than 50% chance that the person is guilty.

The employer must investigate the facts of the case and decide whether the offense is relevant to the work of the employee. If a criminal court may eventually find the employee is not guilty, the employer would not be criticized if it rejected the employee if he had followed a fair procedure and that the offense is sufficiently serious to dismiss.

Some offenses, in particular as regards the consumption of alcohol or drugs may be covered by the contract of employment or regulated by a regulator of an industry. For example, offenses related to alcohol, airline pilots must comply with industry regulations that stipulate a minimum time between "bottles and gas."

So, if an employee is arrested and charged with a criminal offense:

1.Si they are in the custody and are unable to fulfill their contract, get legal advice to determine when you can throw on the basis that the contract was actually "frustrated."

2.In the employee has been published and is available for an interview investigative work to take place. If a decision is taken to suspend this should be on the basis that the employee receives full pay pending the outcome of any hearing.

3.Si the company is satisfied with the responses of the employee and there is no negative impact on the company while the employee can return to work.

4.Si employee pleads guilty or gives an unlikely defense and the offense a negative impact on their ability to do the work or reputation of the company, then hold a disciplinary hearing.

5.Si the discipline committee finds that the employee may be guilty of a balance of probabilities (over 50%) and disciplinary action you take is "in a range of reasonable responses", then you can proceed dismissal. But all the circumstances of the case must be taken into consideration and a fair procedure must be followed.

This article is free for republishing - One link must be active. Āc 2008 Simon Dance

Links:

aec http://www.ms-solicitors.co.uk/Community_care_law/index.html
aec http://www.ms-solicitors.co.uk/employment_law/index.html