Dismissing an employee convicted of a criminal offence

7 July, 2015
by: Cripps Pemberton Greenish

Whilst some template contracts of employment include a provision for termination where an employee is found guilty of a criminal offence which results in them being held at Her Majesty’s pleasure, it is not that straight forward. A recent case has shown that a letter in the post informing the incarcerated employee that their employment was terminated, was unfair.

The case in question is Harvey –v- Vista Hotels Limited which made its way into the national press last week with the shocking headline: Head chef sacked while in prison for biting police officerwins £11k payout. James Harvey, a chef working in Guernsey, was sentenced to 18 months’ imprisonment following a conviction for grievous bodily harm for biting two special constables in Guernsey and spitting their blood on other police officers. Mr Harvey’s employer, Vista Hotels, claimed that they sent him a letter informing him that his employment was terminated but didn’t keep a copy of the letter or conduct any form of investigation.

Mr Harvey lodged a claim to Guernsey’s Employment & Discrimination Tribunal for unfair dismissal. The Tribunal found that Vista Hotels had not followed the correct procedure in order to dismiss Mr Harvey despite having a potentially fair reason for the dismissal. The Tribunal criticised Vista Hotels for not carrying out its own investigation. In particular, Vista Hotels had made no attempt to interview Mr Harvey to obtain his version of events prior to terminating his employment. Mr Harvey was awarded £11,156.25 compensation for unfair dismissal. It is however worth noting that the rules on compensation are different in Guernsey.

Whilst this is a Guernsey Tribunal decision, which does not have effect in the UK, this case highlights the importance of following your organisation’s disciplinary procedure in all circumstances in accordance with the ACAS Code of Practice. It is also worth remembering that just because there is a provision within the employment contract to terminate in such circumstances, this will not override the obligation to follow a fair disciplinary procedure.