Football Violence and Implications for Employers
Six British fans were jailed for between one and three months on Monday, 13 June for their part in the Marseille violence, while on Tuesday, 14 June 24-year-old Birmingham City supporter Daniel Warlow was given a five-year football banning order for his part in the disorder on Friday, June 10. Read my Top Tips to Football Violence and Implications for Employers.
What should an employer do if an employee is detained in police custody due to alleged football hooliganism and is unable to attend work?
If an employee is unable to attend work because they are detained in police custody due to alleged football hooliganism the employer should attempt to find out as much as possible about the situation, including the likely length of absence and the nature of the alleged offence. Assuming that the employee is released after a short period and returns to work the employer should hold a meeting with them to find out more, namely whether or not the employee has been charged, and, if so with what. The employee should be given the opportunity to state their version of events. Although the absence was unauthorised it is unlikely to be reasonable for the employer to take disciplinary action against the employee if they were unable to attend work due to the detention, particularly if there is no charge or the charges are minor. However, the employer may elect not to pay the employee for the period of absence.
If the absence is likely to be prolonged because the employee has been charged with a serious offence and is remanded in custody, it is advisable for the employer to keep them “on the books” pending the full trial. The employer may elect not to pay the employee during the absence because they will be unable to perform the employment contract.
Can an employer fairly dismiss an employee because they have a criminal conviction for football hooliganism?
Whether or not it will be fair for an employer to dismiss an employee because they have a criminal conviction for football hooliganism depends on the circumstances. A conviction for hooliganism should not automatically lead to dismissal. However, disciplinary action, including dismissal, may be appropriate if the employee is convicted of a violent offence, the offence relates to the employee’s job or the employer’s reputation is likely to be damaged by the employee’s conviction. The employer will need to be able to demonstrate that a dismissal was for a fair reason and that it followed a fair procedure.
Can an employer fairly dismiss an employee because they have been sent to prison for football hooliganism?
If a criminal conviction leads to a prison sentence the employer may be able to justify dismissing the employee on the basis that they will be unable to perform the employment contract, or seek to argue that the employment contract is terminated by reason of frustration.
Lengthy Prison Sentences
Frustration of Contract is one of the 5 fair reasons to dismiss. This means the employee has not committed any act that gives you grounds to dismiss them but equally they are not going to be able to work for you for the next few years while they are a guest of her majesty! Therefore they are incapable of fulfilling their side of the employment contract.
If the prison sentence is lengthy then it may be fair to dismiss them on the grounds that they will be unable to perform their duties outlined in the contract of employment. Alternatively, you may be able to argue that the contract of employment has been frustrated. Frustration occurs where the contract comes to an end due to unforeseen circumstances that make it impossible for the parties to perform the contract. This is unlikely to apply for a relatively short prison sentence.
- Write to the employee confirming that you understand he has been committed to prison and therefore will not be able to come to work for the next few years and so fulfill his side of the contract; you are sorry you are unable to keep a job open for him and therefore you regard his contract of employment as ended with effect from a given date (probably the date he went into prison).
- He would not have a right of appeal since frustration does not constitute dismissal but give him an opportunity in your letter to correct your understanding if it is incorrect.
- Tell him that you would be pleased for him to contact you on his release when you will consider him for any suitable vacancies that you may have at that time.
- Give him a chance to reply then follow up with a P45 and any other leaver documentation.
You are then free to fill the job with someone else. If he does contact you again when he comes out of prison you actively consider him for any suitable vacancies you have. You do not have an obligation to create a vacancy for him (although you could if that is what you want to do) and you certainly do not have to make his replacement redundant to make room for him. If you did you would be vulnerable to an unfair dismissal claim from the replacement.
Short Prison Sentences
Where the prison sentence is for a short period of time and for an offence that is unrelated to their work, it may be reasonable to hold the employee’s job open until they are released and able to return to work.
- Write to the employee confirming that you understand he has been committed to prison and as the sentence is relatively short you will be able to keep a job open for him.
- The period of time from the date he went to prison and the date he returns to work will be unpaid.
- He would not have a right of appeal but give him an opportunity in your letter to correct your understanding if it is incorrect.
Key points to consider before making any decisions are:
- the nature of the offence
- the length of the sentence
- the nature of their job
- the effect of their absence on the business, and
- the damage (if any) to the reputation of your business.