UK: Employment Contract: Unlawful Deductions from Wages
Authors: Corinna Harris, Ruth Bonino, and Sophie Jackson
An employment tribunal has ruled that a claim for unlawful deduction from wages by a footballer who was suspended while facing criminal charges should substantially succeed.
While Mr. Mendy was both remanded in custody and released on bail for rape and sexual assault charges and prohibited by the Football Association from participating in football matches, he was suspended without pay by Manchester City FC. The Club took the position that his actions had led to the bail conditions and the FA’s suspension which meant he could not fulfil his role. He was subsequently cleared of all charges and brought a claim for the unlawful deduction of wages in the region of £11m.
The tribunal found that Mr. Mendy was ‘ready, able and willing’ to work during the non-custody periods and entitled to be paid as there was no express contractual authorisation for the Club to withhold pay. It concluded that, for the periods he was in custody, his inability to perform the contract was due in part to him breaching his bail conditions and the Club was therefore entitled to withhold pay for those periods.
Key Action Points for Human Resources and In-House Counsel
This is another high-profile case to hit the headlines recently involving the payment of wages while the employee is suspended and facing criminal charges, following that of former BBC presenter Huw Edwards.
Employees under investigation will usually be suspended on full pay and benefits, not least because it otherwise indicates that the employer has presumed the employee’s wrongdoing before the investigation or court decision has concluded.
It may however be possible to recover salary that is paid during the employee’s suspension where either the employee has agreed to the deduction, or the employer has a contractual right to make the deduction. The employment contract should set out clearly the terms that apply if the employee is suspended – including whether they will receive pay and the circumstances under which the employer can withhold and/ or recover the wages.
