Caselaw (i.e. previous decisions of the courts and tribunals) has established that where an employee is “ready, able, and willing” to work but is unable to due to certain external factors outside their control (rather than due to the employee’s own actions), they are entitled to be paid, unless their contract states otherwise (for example where there is a layoff clause). For example, employees who are absent from work because they are sick are not “ready, able and willing” to work and are not entitled to their normal wages (in the absence of the availability of contractual sick pay) but legislation entitles eligible workers to Statutory Sick Pay in this case. In some cases, where an employee is absent from work due to criminal proceedings, this raises more complex questions regarding their eligibility to be paid their normal wages.
In a recent employment tribunal case, the footballer Benjamin Mendy brought an employment tribunal claim against his former club for unfair dismissal and unlawful deductions from wages. Mr Mendy argued that when the club stopped paying him for almost two years during his suspension by the Football Association and while he was on bail for serious criminal allegations this deduction from his wages was unlawful.
Mr Mendy's basic annual salary was £6 million. He sought unpaid wages of approximately £11 million. As the employment tribunal judge commented, “I doubt that quite so much legal expertise and endeavour has ever before been expended in the prosecution and defence of a wages claim brought by a single claimant. But then, I am also fairly sure that no other single claimant has ever alleged that sums in the region of £11 million have been deducted from his wages.” Indeed! However, the judgment provides a useful analysis of when an employee is "ready, able and willing" to work in the context of criminal proceedings and therefore (in the absence of any contractual layoff or suspension clause) entitled to receive wages.
The Employment Tribunal’s Decision
The employment tribunal ruled that the club lawfully dismissed Mr Mendy because his fixed-term contract had expired and due to the specific circumstances. However, part of his claim for unpaid wages was upheld.
Causation Test
The employment tribunal looked at whether Mr Mendy was “ready, able, and willing” to work, such that he may be entitled to pay, during the periods he claimed the withholding of his pay was unlawful. The tribunal then looked at whether Mr Mendy’s own actions contributed to his inability to work, using established legal principles. For example, where an employee is stranded abroad due to an unforeseen natural disaster, they couldn’t be blamed for being unable to work. However, if they ignored warnings and travelled to a high-risk area, their choices might affect their entitlement to wages.
Under caselaw principles, the tribunal decided that whether Mr Mendy was guilty or not was irrelevant to the question of entitlement to wages. Instead, it focused on whether his own actions led to his inability to work.
Applying these legal tests, the employment tribunal ruled that for periods when Mr Mendy was in custody, the tribunal found he was partly responsible for his inability to work due to his breach of bail conditions, and that he wasn’t entitled to wages for those times.
For non-custodial periods, Mr Mendy was entitled to payment because he was willing to work but couldn’t due to external factors beyond his control.
While this case involved some complicated legal tests, this case highlights the importance of clear employment contract terms around withholding pay and how the tribunals assess when employees are entitled to pay for unworked periods in unlawful deductions of wages claims.
FSB members should take legal advice via the FSB legal advice line for employment queries regarding employee pay entitlements.