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In a recent Employment Tribunal case, the Tribunal considered whether former Manchester City defender Benjamin Mendy (the Claimant) suffered an unlawful deduction of wages from his former employer, Manchester City (the Respondent) during his suspension.
The facts
Benjamin Mendy signed with Manchester City Football Club in July 2017. In October 2020, the Claimant was arrested following an allegation of rape and was later suspended by the Respondent in August 2021, following official charges. The Claimant was also prohibited from participating in any football related activities by the Football Association (FA) from the date of his arrest up until his acquittal in July 2023. The Respondent deemed the Claimant unable to fulfil his role following his suspension and the action taken by the FA and proceeded to withhold payment of the Claimant’s wages for this reason.
The Respondent continued to withhold payment of wages from the start of the Claimant’s suspension up until the end of his contract in June 2023. This meant the Claimant suffered a loss of wages for 22 months, 5 of which he was in police custody.
The ET’s decision
The ET partially upheld the Claimant’s claim, finding that the Respondent unlawfully withheld payment during the periods in which he was on bail. Despite the Claimant’s extreme suspension circumstances, there was no provision in the Claimant’s employment contract which allowed for such a deduction to be made. Therefore, following ACAS recommendation, the Claimant was entitled to be paid fully during his suspension.
The Respondent’s justified withholding the Claimants wages as he was ‘not presently ready and able to perform the obligations of his contract’, largely because of the FA’s decision. However, the ET found that despite the restrictions placed on the Claimant by the FA, he was ‘willing, ready and able’ to work, but was prevented from doing so.
The ET did, however, conclude that the Respondent was not obliged to pay the Claimant during any periods in which he was in police custody, deeming such a reduction justifiable. Unlike when the Claimant was on bail, whilst in police custody it would not have been possible for him to perform his duties and therefore was not ‘willing, ready and able’ to work.
This distinction meant that the tribunal only found the Respondent guilty of unlawful deduction of wages during the time in which the Claimant was on bail, allowing for such deductions during times in which the Claimant was in police custody.
The takeaway
It is important that employers ensure they incorporate clear and defined suspension provisions into employment contracts. Employers should also consider the circumstances which surrounds any suspension and take legal advice where appropriate. Such deductions are unlikely to be deemed unlawful if there are clear provisions which allow for deductions in certain circumstances, for example suspension from external regulatory bodies.
If you would like assistance with drafting suspension terms into existing or new employment contracts, then please contact our Employment Team.
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