In response to our HR daily question, Can an employer dismiss an employee because he or she is in prison?, Matthew Scott, who served for 10 years in the Prison Service and rose to the rank of operational manager, argues that it is not always fair to dismiss an employee who has been given a prison sentence.
Matthew is now the Business Development Director for Signal Business Consulting Ltd.
XpertHR's tribunal reporting service is this week providing summaries of three cases in which employees who lost their jobs as a result of criminal charges claimed unfair dismissal. We have also started a topic of the week series for October on misconduct outside work.
Matthew Scott, former operational manager at the Prison Service
"Take him down." Three words that signify the beginning of a custodial sentence for a law breaker and a complete change of life for him or her, his or her family and in some cases his or her employer.
I have always thought that one of the main responsibilities to dealing with those in the criminal justice system is "reasonableness". Yet, in my time serving in the Prison Service, I was always amazed at how unreasonable people and employers could be when dealing with those who had fallen foul of the law.
Now, I'm not here on a moral crusade for penal reform, to push a "hug-a-hoodie" agenda, or to tell you that everyone in prison is a misunderstood soul. However, as a former observer of the lives of those consigned by the courts to prison, I am here to say think before you leap to dismiss an employee who has been imprisoned . . . is it reasonable?
I accept the fact that organisations like the armed forces, police and prison service dismiss automatically as it is a breach of their rigid codes of conduct, but if your organisation is not regulated in such a tight way, need you dismiss out of hand?
Prisoners are allowed to receive visitors as soon as they are incarcerated. One category of visit is "Official". These are normally conducted by the prisoner's legal team working on defence, appeal or other matters court-related. However, the facilities for these visits are often taken by employers visiting to sever the ties with their employee face-to-face. They range from the excessively formal military dismissal, where I always imagined, if the prisoner was still wearing uniform, his or her epaulettes would be ripped from the shoulder; to some emotional one to ones with a boss who may also be a friend.
A crime against the organisation, a theft, fraud or industrial espionage, may indeed indicate a breach of trust that means dismissal is the only option.
A serious crime such as murder, rape, arson potentially carries a "life sentence" and this again is grounds for dismissal.
What if the crime is not against the business and doesn't incur an indeterminate sentence? Is it reasonable to dismiss? In my experience, people end up in prison for all sorts of reasons, sometimes for a one-off stupid act. Consideration needs to be given to the impact that the punishment of imprisonment has already had in the prisoner's life. Serious thought needs to be given to the automatic removal of the means to start rebuilding once the sentence is served; otherwise we are arguably contributing to and increasing the likelihood of future reoffending.
Yes, we can argue that a conviction indicates a breach of trust, but does it necessarily indicate a breach of trust that an organisation can no longer live with? An employee's mistake is in many cases a breach of the trust the employer has placed in that individual, but you don't dismiss out of hand.
I accept that organisations are not welfare communities, existing solely for the support of its members, but imprisonment can and does feel like the whole world has abandoned an individual. Before you join that group, please ask yourself: are you being reasonable?