What happens to the employment contract when someone goes to prison?

In this new post we are going to explain what the company has to do when it is notified that a worker has gone to prison. Can you terminate the employment contract, or do you have a reservation for the job?

To answer this question, the first thing we have to differentiate is whether the entry into prison is preventive or permanent, since depending on each scenario, the employment situation is different.

Entry into preventive detention

In this case, when the worker is in preventive detention, awaiting trial or sentencing and, since there is no final conviction: the employment contract will be suspended, but will not be terminated.

This is what the article states 45.1.g of the Workers' Statute where it says that the contract will be deemed suspended, among other reasons for: “Deprivation of liberty of the worker, as long as there is no conviction.”

Therefore, the worker has no obligation to provide services and, consequently, the company does not have to pay any salary, but the employment relationship remains dormant until the judicial resolution of the case.

In these cases, it is important that the company be informed by any means of proof admitted by law that said person is in preventive detention and prevent the company from taking disciplinary measures for unjustified absences.

The future granting of provisional release will allow the worker to return to his or her job, and if not, the worker may sue before the social jurisdiction for unfair dismissal.

Entry into prison for final sentence

In this case and from the moment in which there is a conviction and the deprivation of liberty is final, the cause for suspension disappears; Therefore, absences from work will no longer be justified, and the worker may be dismissed. According to the Supreme Court, although the stay in prison is not voluntary, “…“Yes, the punishable conduct that determined the imposition of the sentence was”.

At the moment in which the deprivation of liberty is confirmed by a final sentence, disciplinary dismissal could be carried out for repeated and unjustified absences from attending work. We are no longer facing a suspension of the employment relationship, but rather an extinction of it: definitive severance of the employment relationship.

We will have to be attentive to the case, since the maximum period of provisional imprisonment is two years, therefore, if this period has passed and the company has not heard from the worker, before communicating the dismissal, send a burofax requesting that you clarify your prison situation for the purposes of demonstrating procedural good faith.

Definitely…

If we are facing a provisional deprivation of liberty, we can only suspend the contract, however, if the deprivation of liberty is final, we can articulate a disciplinary dismissal.

If you like these topics, and want to learn and learn more about this matter, request information and sign up for our “Master in HR: People Management, Talent Development and Labor Management”.