Would an employee being sentenced to a term of imprisonment ‘frustrate’ any contract of employment with that individual?
‘Frustration’ is a common law expression to describe what happens where a contract has been made but for whatever reason, through no fault of either party, it later becomes impossible for one or both parties to perform their obligations under the contract. The situation bringing about the frustration would normally be one beyond the control of either party; unforeseeable by both parties.
For example, a contract is frustrated when there is a change in the law that makes the fulfilment of the contract illegal; a contract for the sale of a house would be frustrated where the house burns down before the sale can be completed.
But what about the situation where an employee is sentenced to a term of imprisonment? Would the contract of employment be frustrated? If the contract is frustrated it automatically comes to an end; both parties are released from their obligations under the contract and neither party has any claim for a breach of contract.
Just because an employee is sentenced to a term of imprisonment does not automatically frustrate and put an end to the contract of employment from the date the employee is sentenced, although it could do. Whether the contract of employment is frustrated by a period of imprisonment will depend on how long is the sentence.
For example, in Prior v City Plumbing Supplies Ltd  UKEAT 0535/11, Mr Prior was convicted in May 2008 of an offence of homophobic behaviour towards a neighbour and given a community sentence and made the subject of a restraining order. In December 2008, he was again convicted of the same offence; and this time he was sentenced to 12 weeks in prision, suspended for 12 months. In June 2009, Mr Prior was arrested at work for breaking the restraining order. In May 2010, he was sentenced to six weeks in prison, plus the suspended sentence of 12 weeks, making a total of 18 weeks, of which he would have to serve at least half before being released. The employer maintained Mr Prior’s contract of employment had been ‘frustrated’ and his contract was ended.
However, the Employment Tribunal concluded that Mr Prior’s sentence was not long enough to create a frustration, even if he ended up serving the full 18 weeks.
Therefore, what factors should an employer take into account before claiming an employee’s contract has been frustrated by a lengthy prison sentence?
The employee’s notice period for one. For example, if due to length of service an employee would either statutorily or contractually be due a period of notice approximately as long as their prison sentence, their contract would not necessarily be frustrated if they were imprisoned for a similar period.
Again, does the employer have a policy of allowing generous periods of paid (or partially paid) sick leave? If an employee is sentenced for a period equating to the length of time an employer would allow an employee to be off on sick leave before taking action to bring their contract to an end, an employee’s imprisonment would not automatically frustrate their contract of employment.
Another factor, along with the length of the prison sentence would be the importance and cost of replacing the imprisoned employee. An employer cannot be expected to incur substantial costs keeping a job open if it would be reasonable of them to stop employing an employee by reason of frustration.
Of course, an employer may envisage the possibility of an employee being imprisoned, for any or for a specific reason, and expressly include in terms and conditions exactly what would happen under those circumstances. In such a case, there would no longer be a frustration of the employee’s contract of employment because the fact that an employee is imprisoned was foreseen and provided for under their contract.