It is clear that when a person is going to go to prison, it is not a pleasant fact. For no one.
Now, the law must be complied with.
This blog is not a blog of purely legal issues but specialised in tax and labour issues for companies and freelancers
In this article we are going to see what to do with an employee’s employment contract when he is going to go to prison.
If you can suspend the employment contract until you get out of prison or if you can terminate it.
Join us in this interesting article.
Communication from the worker to the company that he is going to go to prison
The employee can resign
Before entering prison, the worker must contact his company to inform him of the situation and for you to take the measures you deem appropriate.
In such a case, keep the following in mind:
- If the sentence is handed down by a final judgement, he may fire him.
- On the other hand, if it is only a preventive detention, you must suspend the contract.
- However, in the event that the accused does not inform him of his circumstances, it could be considered abandonment of the job
The sentence to go to prison is final
The company can fire the worker
As soon as the worker informs him that he has to go to prison by signing judgement, he can fire him with a disciplinary dismissal for lack of attendance at the job.
Such absences will be considered unjustified (the worker cannot allege any cause that justifies them, since he himself was responsible for the conduct that led him to prison), so the dismissal will be appropriate even if he has communicated his situation.
What happens if the employee does not inform you of the final judgement?
If you do not communicate your situation by any normal and reasonable means at your disposal (a phone call, an email, a communication from your lawyer, a WhatsApp, etc.), you can also fire you for lack of assistance.
Check your agreement how many offences are necessary to consider that there is a very serious infraction.
If enough time has passed, you can even cancel him for tacit resignation (in large companies, it may have been weeks or even months that the worker has not shown up for his position without any justification and has not been warned).
What happens if the worker goes into pre-trial detention?
The company has to suspend the employment contract
If, on the other hand, your worker goes into prison on a preventive basis and the company proceeds with the dismissal, it could be declared inappropriate or even null and would result in compensation for dismissal and even for damages (if the fundamental rights of the worker are considered violated).
In the case of preventive detention, do not fire the worker, but suspend the employment contract
Period of suspension of the employment contract
- During the suspension period, the convict will not be obliged to work and will not generate vacation days. You will not have to pay his salary or contribute to Social Security.
- If he is finally released, the contract will resume and the affected person will be able to return to his post.
- Otherwise, once the conviction is final, he may proceed with the dismissal.
A worker cannot be fired if the sentence of imprisonment is preventive
What happens if the worker does not inform you of the progress of the judgement?
It may also happen that the company keeps the contract suspended and that, without the company knowing it, the convict goes from provisional to permanent detention.
Well, if when he regains his freedom he asks for reincorporation (claiming that he did not fire him at the time and that now he can no longer do so), he can fire him.
Having concealed the definitive prison, the deadline for sanctioning has not been prescribed, and begins to be calculated as soon as the concealment ceases.
What happens if the worker is arrested?
The simple fact of the worker’s arrest does not justify the company’s termination of the employment contract.
Remember: arresting a person does not mean they have to go to prison
Very Important
The reason for detention is directly related to the workplace, for example:
- Assaulting another worker
- The robbery at the work centre
In these particular cases, the company may justify the dismissal, since the cause of the detention can transgress the good faith of the employment contract and not the mere fact of being arrested.
Summary of what to do with the employment contract if a worker has to go to prison
If the sentence of imprisonment is provisional, you must suspend the worker’s contract
If it derives from a final judgement, it may be dismissed for unjustified absences
If he does not communicate anything to him for a long time, it may be understood that he has resigned.
Contact our labour department if your employee is going to go to prison
