I have just learnt that an employee of one of my clients has gone to prison for two years. I have not paid him for the past four weeks as no time sheets were submitted. My question is does he stay on the payroll and accrue holiday but does not get paid or do I issue a P45 and we part company or is this unfair dismissal. My client just wants to keep within the law and would probably take him back when released from prison? Anyone any information on such circumstances?
The unfair dismissal issue will depend on what under his contract he can be dismissed for without going through the rigmarole of warnings etc and what he has gone to prison for.
Most contracts Ive seen would suggest his conduct resulting in a prison sentence would be cause for immediate dismissal, plus fo course then being unavailable for work.
If your client does not have a written contract I would strongly suggest they speak to someone at ACAS for guidance and take it from there. The staff member is of course entitled to pay for the period he worked and any accrued holiday pay so that matters needs addressing and quickly as withholding his pay may give rise to a claim.
I reckon ACAS will suggest he is P45'd, if so, whilst they may want to take them back when released I would suggest this be dealt with at the time they are released as other circumstances may by that time factor in to the decision, from either party.
HTH
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Joanne
Winner of Bookkeeper of the Year 2015, 2016 & 2017
Thoughts are my own/not to be regarded as official advice,which should be sought from a suitably qualified Accountant.
You should check out answers with reference to the legal position
Personally, as an employer, I would be treating this as absence from work and P45, with any accrued holiday pay plus the required payment in lieu. There is no reason why your client can't re-employ him once he's released from prison. However I am no expert, that is just my opinion, and should not be construed as advice.
It may be worth you posting in the employment section of uk business forums. There are a couple of really good employment law specialists on there, newchodge and Karl Limpet (Employment Law Clinic) and they would be much better placed to offer advice.
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John
Any advice given is for general guidance and professional advice should be sought applicable to your circumstances.
Thank you for the responses. For the time being they have decided to keep the employee on the payroll (not being paid) until the partners can make a decision. I am of the opinion to P45 and should the employee contact us on his release, the situation be re assessed. I don't think they are replacing him and others will have to cover. If we all had a crystal ball, would decisions be easier? I will do as the client wishes.
