The case of Benjamin Mendy was an infamous one .A footballer accused of rape, and subsequently suspended by Manchester City without pay, pending the outcome of his criminal court case. Mendy argued in front of the Employment Tribunal that by doing this, his employer had deducted money from his salary without legal or contractual permission. So what did the Tribunal decide?
Mendy’s 3 year contract gave him £6 million a year and was a standard employment contract. He was then charged with a rape conviction and was given a curfew every evening, which he inevitably did not adhere to. He was suspended by the FA and City subsequently suspended his salary on account of his inability to perform his duties and that he was ‘not presently ready’ to play football. He was then found not guilty of all charges, after his contract had come to an end, and Mendy sued for backpay.
The Law
Per S13 of the Employment Rights Act, an employer shall not make a deduction from a worker's wages unless that deduction is required or authorised by a statutory provision or the employee's contract, or if the worker has consented to the deduction.
This would take into account if there was an express term in the contract allowing the employer to stop paying wages, or an implied term based on custom and practice. If these did not exist, it can be evaluated whether the employer may be entitled to stop paying wages on the basis that the employee is not ‘ready, willing and able’ to work during the relevant period. The language of Manchester City’s statement was thus clearly written by their In-House legal team with this provision in mind!
City's lawyers argued that the right to deduct pay came from an implied term. The tribunal rejected this notion and stated that the contract showcased ‘an unusual degree of equality in bargaining power’.
The tribunal then had to consider if Mendy was ‘ready, willing and able’. They separated the periods of ‘non custody’ (where he was suspended by the FA but not subject to any custody conditions) and ‘custody’. When not in custody, the tribunal noted that Mendy could not fulfil the obligations of his contract despite being ready and willing. The tribunal then considered if the suspension and his bail conditions, as barriers to work, were his fault, and whether there was a causal link between his actions and his suspension.
The ET saw them as ‘impediments’ that were beyond his control. Thus, City should have paid for his wages whilst he was not in custody. When he was in custody for breaching his bail conditions, it was arguable that he was responsible for his own inability to fulfil his duties. He acted in a culpable way and thus during these periods, Mendy could not be expected to receive his salary. They left it to the parties to decide and agree how much Mendy would thus be paid.
Employers should be mindful when it comes to withholding pay. The aggravating factor of his alleged crime of course played into City’s decision to withhold pay, as the optics of paying an alleged rapist would not go down well whatseover, but this is why express terms within a contract are so important in highlighting each party’s obligations. If an employer may want to reserve their rights to be able to withhold salary at a later date in certain situations, the contract should clearly provide for this.