There is no right to withhold pay, unless the employee cannot come to work through something they did to prevent their attendance, decided the Employment Tribunal in the recent case of Mendy v Manchester City Football Club Ltd ET/2411709/23.
Former Manchester City defender, Benjamin Mendy, was charged with sexual offences in August 2021. The club suspended him without pay pending the outcome of the criminal process, but he was later acquitted of all charges. Mr Mendy brought a claim for 22 months of unpaid wages, amounting to an eye watering £11m.
However, Mr Mendy had also been remanded in custody for approximately five months due to breaching his bail conditions.
Mendy’s right to withheld pay
For 17 months out of the total 22 months of suspension, the Tribunal decided that the club were not entitled to withhold his pay because (i) there was no express contractual authorisation to do so, which s13 of the Employment Rights Act 1996 makes a prerequisite of any lawful wage deduction; and (ii) Mr Mendy had been ready and willing to work.
While the football club argued that Mr Mendy was the author of his own troubles, having been warned about his lifestyle choices, the Judge decided that Mr Mendy had been prevented from working for 17 months by impediments that were unavoidable or involuntary on his part.
Availability to work
However, the Tribunal also ruled that the football club were able to withhold his pay during the five months that he was remanded in custody as his inability to work was solely caused by him not adhering to his bail conditions.
It may be that many football clubs will be reviewing their contracts of employment in light of this case to ensure pay while suspended has this scenario covered-off. After all, this is not the first time a famous footballer has been in accused of serious foul play.
A robust employment contract
While, of course, parties will hope that they are never in a situation where an employee has to be suspended, it is essential that the contract provides (i) the right to suspend; and (ii) the conditions upon which salary during suspension may be fully paid, paid in part, or not paid at all.
Many contracts we see (that we did not advise on initially) fail to address this issue. It is in any event good practice to periodically review contracts of employment and staff handbooks to ensure that drafting is in line with the very latest developments in statute and caselaw.
Here at Peacock & Co Solicitors we can help to review contracts and handbook policies to bring them right up to date and tailor them to meet your ever changing business needs.
As with all employment matters, each situation is unique; our employment team are happy and here to help.