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Q: One of our employees has been sentenced to three months in prison for an offence unconnected with work. Nevertheless his absence is an inconvenience and we would like to replace him. Can we safely say that the contract of employment has been frustrated?
A: No, you should rely on frustration of contract only if there is no other way of bringing the contract to an end and, in this case, you could end it by giving notice of dismissal. However you would be unwise to do so. Judges take the view that they alone do the punishing and you do the rehabilitation. You should consider first how long the period of absence is likely to be, and I suggest that with good behaviour he will be out in less than two months. Second consider whether you would keep a job open for two months for an employee on sick leave. I suggest that you would. Therefore do the best that you can to keep the job running until your employee returns.