An employee’s incarceration for reasons unrelated to the employment relationship is certainly an exceptional situation, but one that requires an appropriate response.Faced with this situation, the employer is naturally tempted to do nothing, taking the view that the employee’s detention terminates the employment contract of the person concerned, since the individual is no longer able to be present for their duties at work.And yet, if the employer does nothing, it risks seeing the employee turn up for work at the end of his or her incarceration period (months, or even years later depending on the case!).
Incarceration of an employee: a ground for contract suspension
Incarceration does not constitute force majeure that terminates the employment contract. Rather, the absence of an employee who has been placed in police custody, on remand, or who is ultimately sentenced to a term of imprisonment suspends execution of the employment contract (Cass., Soc., 3 April 2001, n ° 99-40.944).
An employee’s incarceration does not, of itself, justify dismissal. Dismissal solely on the grounds of the employee’s imprisonment would be a dismissal without a real and serious cause.
Possible reasons for terminating the employment contractNevertheless, an employer whose employee is incarcerated may consider terminating his or her employment contract in three situations:
- The employee’s absence is unjustified. An employer who does not receive specific information on the reasons for the employee’s absence, or who is given an untrue explanation for the absence, can envisage terminating the employee’s contract for serious misconduct (abandonment of post, etc.). In that case, notification of the dismissal does not lead to the payment of any severance pay (severance pay or allowance in lieu of notice (indemnité compensatrice de préavis, ‘ICP’)).
- The employee’s prolonged absence disrupts the operation of the organisation and makes the appointment of a permanent replacement indispensable. In this case, since the reason for dismissal is not employee misconduct, the employee, although incarcerated, is entitled to receive severance pay. On the other hand, no ICP is payable, because the employee would have been unable to work out their notice period.
- The facts that led to the employee’s detention, or the conditions of incarceration, cause a specific objective disturbance within the organisation. This will apply, for example, if the employee’s incarceration seriously undermines the image of the employer organisation, or if the facts giving rise to the employee’s conviction are incompatible with his or her duties. This dismissal for (non-disciplinary) personal reasons gives rise to an entitlement to severance pay but not to the ICP (because it would have been impossible to work out the notice period).
Steps for the employer
- Stop paying the absent employee’s salary.
- Give notice to the employee asking him or her to justify, in writing, the reasons for, and the foreseeable duration of, the absence from his or her position, by registered letter with acknowledgement of receipt (lettre recommandée avec accusé de réception, ‘LRAR’) at the usual place of residence of the person concerned or at any other address (in particular, at the place of detention).
- Do not disclose the reasons for the employee’s absence to the staff: there is a risk of harm to the employee’s dignity, which may be damaging to him or her.
- Implement the usual redundancy procedure.
- Where applicable, notify the employee of his or her dismissal: by LRAR at the usual place of residence of the person concerned or at any other address indicated by him or her (in particular, at the place of detention);
- Where applicable (that is, when the reason for dismissal is that the prolonged absence is disrupting the operation of the organisation), recruit a definitive replacement for the incarcerated employee.