Rioting and Employment Rights

The recent rioting across the UK has led to a number of queries in relation to people’s employment rights. 

In relation to those who were involved in the rioting, what will happen about their employment if they have been arrested and subsequently prosecuted?

In addition, what happens to those who are unable to go to work because their workplaces were attacked in the riots?

As stated in the ACAS Code of Practice, “If an employee is charged with, or convicted of, a criminal offence, this is not normally in itself reason for disciplinary action”. Essentially, for the criminal conduct to be a disciplinary or dismissible offence it must affect the business in some way or undermine the employer’s confidence in the employee.

In terms of those involved in the rioting and looting, it is clear from the press reports that the Courts are dealing with those individuals very seriously and the majority are receiving custodial sentences.  Much personal information has appeared in the press about those convicted, including in some instances the name of the employer.

Given the seriousness of the incidents, some employers may be inclined to summarily dismiss those individuals for gross misconduct for bringing the company into disrepute.  Dismissal in these circumstances might be looked upon sympathetically by the Tribunals.  But arguments will differ depending e.g. on the degree to which the employee has exposure at work to or dealings with the public (in the past cases have been decided against probation workers where their work brings them into contact with young offenders; criminal convictions for rioting are not consistent, it is said, with that sort of work).

If an employee is unable to attend work for personal circumstances, for example if their house has been damaged in the rioting, then that employee needs to be aware that they will not necessarily be entitled to be paid for any time that they have off, unless there is some provision in the contract which says so.  If there is no contractual term then the employer can lawfully withhold pay until the employee returns to work. 

However, if the employee is unable to work because the workplace is closed, then assuming the employee is otherwise ready and willing to work, then the employer must continue to pay their wages, unless there is an express contractual right that the employee can be laid off without pay.  If there is such a contractual right, then those employees may be able to claim a guaranteed payment. 

If the workplace has been completely destroyed then there is an argument that the employment contract has been frustrated because there has been an unforeseen event which makes the parties unable to perform the contract.  If the contract has been frustrated then there has been no dismissal which means that the employee would be unable to claim unfair dismissal and they also would not be entitled to receive any notice.

Somewhat unusually, if there has been an unforeseen event which has led to the contract being frustrated, the employee may be entitled to receive a statutory redundancy payment under s.136(5) Employment Rights Act 1996, which specifies that such a situation is to be classed as a termination by the employer for redundancy pay purposes.

However, frustration is a difficult point for an employer to take: the situation may better be dealt with simply as a redundancy situation and the employee may be able to claim redundancy pay as well as still having an entitlement to notice.

If you would like to speak to us about bringing a claim or are interested in further information on employment rights, please contact our employment rights team on 0113 245 0733.