Tuesday, August 09, 2011

Employment Law Implications of Riots

London and a number of other English cities have been hit by a wave of riots in the last few days.

This may have employment law implications both for the victims and the perpetrators (or at least those amongst the rioters who do not form part of the unemployed "underclass" as the tabloids would describe them.)

If you lose your job, or your business, because the premises are burned down then this may well amount to the "frustration" of the contract of employment. This arises where as a result of an unexpected event outside of the control of the parties the performance of a contract becomes impossible. The problem from an employee's point of view is that frustration brings the contract to an end without it being termination by the employer. This means there is no right to notice, let alone notice pay (although they will be entitled to statutory redundancy pay, which can be recovered from the Government if the employer is unable to pay.)

Because of the drastic consequences of frustration for the employment contract Courts and Tribunals can be reluctant to find that it has arisen. Factors that would be taken into account would be whether the business has permanently closed or whether the contract can be performed from other premises.

A slightly different issue would be what happens if someone cannot attend work for a more limited period because of rioting. This might include a situation where they are sent home because the Police "lock down" an area. Is the employee entitled to be paid?

This would depend on the employee's contract, but in most cases there is unlikely to be an express written term covering this eventuality. As such one has to look at the implied, unwritten, terms. An employee who is "ready, willing and able" to work is usually entitled to be paid. If the employer sends them home because of a riot then the employee will normally be entitled to be paid. If the employee chooses to go home, or cannot get to work because there is no public transport, then they will normally not be entitled to be paid.

Turning to perpetrators, the question here will be whether their employment can be terminated as a result of them being convicted or accused of an offence outside of work. If someone is sentenced to a term of imprisonment then depending upon the length of the sentence this might frustrate the contract (see above.) If it does not, then the guidelines indicate that conviction for an offence outside of work will not automatically lead to a fair dismissal.

The question will be whether the offence means that they are not suitable for their employment any more. Someone convicted of a minor public order offence could not necessarily be fairly dismissed if they work as, say, a shelf stacker in a supermarket. Arguably a teacher of an inner city class of teenagers who was convicted of any involvement at all might be at greater risk. Another consideration is whether it reflects on the employer's reputation. A postman looting seen pushing and shoving a Police line whilst wearing a Royal Mail top might be leaving himself more exposed than someone whose attire does not give the public any idea who they work for.