I Wonder if I Am Required to Pay Employees Who Are in Custody?

In 2022, over 43,000 individuals in the UK were sent to prison to serve sentences, and over 12 million people hold a criminal record. According to the Ministry of Justice, around 22-23% of individuals between the ages of 16 and 64 have a criminal record. At some point, many employers may face the reality of an employee being held in custody, but how should they approach the issue of pay in such circumstances?

This article will explore the legal landscape regarding whether employees in custody are entitled to pay and offer practical advice to help employers handle these situations smoothly.

Legal Overview: What does the law say?

The law does not provide specific guidance on whether employees in custody are entitled to pay, but the general rule is that if an employee cannot work due to incarceration, they are not entitled to their salary. This absence is typically treated as "unauthorised." In the case of Burns v Santander, the claimant appealed for his salary after being remanded in custody for six months, arguing that his inability to work was unavoidable and that he should therefore be entitled to it. However, the Employment Tribunal disagreed, stating that his absence was avoidable, as his own actions led to the remand and the case's dismissal. This set the precedent that employees are not entitled to their salary in custody.

While this ruling provides a clear framework, employers should be aware that each situation may vary. Exceptional circumstances, such as short-term detentions or work-related issues, could affect the outcome. In most cases, employees in custody are not entitled to pay, but employers should seek legal advice when needed.

Issues employers may face

While the situation is rare, employers may still encounter several issues if an employee is detained. Some common challenges include:

• Lack of Clarity and Uncertainty: Employees may not fully understand their rights or your company's policy when detained. This can lead to confusion about pay expectations and cause frustration for both the employer and the employee’s colleagues.
   
• Inconsistencies in Handling Cases: Employers may struggle to respond to these situations in a fair and consistent manner, potentially leading to discrepancies in how cases are handled.
   
• Employees Challenging the Decision: In some cases, employees may challenge the decision to withhold pay while in custody, potentially leading to complaints or legal action if they believe they are being treated unfairly for not receiving it.

What can employers do to make this clear?

To avoid confusion and ensure consistency when managing an employee’s absence due to custody, it’s essential to have a clear, well-documented procedure in place. Here are some practical steps employers can take:

• Communication Is Key: When an employee is in custody, communicate with them to understand the circumstances, if possible. If the employee is remanded, staying informed about the status of their case is helpful. This will help make decisions about ongoing employment and whether the absence will be considered unpaid leave, a suspension, or potentially result in termination.
   
• Consider Temporary Adjustments or Leave Options: If your employee is detained for a short period, you may be able to offer temporary adjustments or leave options. For example, allowing them to use annual leave or offering unpaid leave if your policies permit. This approach ensures fairness and keeps the door open for the employee to return to work once their situation is resolved.
   
• Follow a fair process: Even though the employee is not actively working, they are still an employee and therefore entitled to employment rights, such as the right not to be unfairly dismissed (provided they have the requisite service). If you are looking to dismiss, it is important that a fair process is still followed.

Conclusion

In conclusion, while employees in custody are generally not entitled to pay due to an "unauthorised" absence, employers should be proactive in managing these situations. By having clear policies, maintaining open communication, and offering fair processes, employers can navigate these challenges effectively and consistently. While each case may vary, ensuring that policies are up to date and legally sound will help avoid confusion and potential disputes down the line.

Further Advice

If you have any queries on workplace burnout or any other employment-related matters, our Peace of Mind Team is here to provide expert guidance. Our Document Audit Team can also assist in drafting relevant workplace policies.

Contact our Employment Team by emailing employment@warnergoodman.co.uk or calling 023 8071 7717.

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