Home / What to do when an Employee is Charged by the Police
25th October 2024
James Howarth, Associate
Benjamin Mendy, the former French International footballer, who previously played for Manchester City Football Club, has brought a claim against the club for the unlawful deduction of wages. His claim amounts to around £11m, comprising his (significant) basic pay as well as various bonuses not paid to him during the period of time that he was suspended.
It is unusual for such a high-profile case to reach the Tribunal, with cases often settling before hearing to avoid the disclosure of sensitive or embarrassing details to the public. However here, clearly at least one party believes themselves to be inherently right, and is willing to see the matter through to a judgement, especially considering the sums of money claimed.
The case is of significant interest because of the approach taken by the club in tackling the issue. Usually if an employee is arrested, an employer would consider effecting suspension pending disciplinary investigation, with it being commonplace for contracts to state that suspension would be on full pay. This can then prove costly if the period of suspension is lengthy. Taking in comparison the recent case of Hugh Edwards and the BBC, many voiced their objections to the fact that Mr Edwards remained suspended on full pay during the criminal proceedings to which he was subject at the licence fee payer’s expense.
Mr Mendy, was charged with rape and various sex offences in 2021, resulting in him being suspended by the club, without pay (or at least a large proportion of his pay) until his contract eventually expired in June 2023. He was arrested and (because he did not initially comply with his bail conditions) was later remanded to prison until re-granted bail in January 2022. This meant he was unavailable to train and play games for the club for the best part of two seasons.
Following this, his bail conditions still restricted his availability for certain matches – he could not travel into Manchester to train and play in home games, or leave the country to play in European games for example. Given this, it is probably unlikely that he could have complied with the terms of his contract of employment.
Mr Mendy was later acquitted of all the charges brought against him, shortly after his contract with the club expired. It is his view that he was wrongly accused, and that the club presumed his guilt, and as result withheld his pay.
We do not yet have the Tribunal decision, so we do not yet know the outcome. However, a key factor to the decision will likely be the wording in Mr Mendy’s contract.
In light of his arrest, the club wrote to him in September 2021 telling him he was suspended and stating that they were withholding his salary until he was ready and able to perform his obligations under the contract of employment. Either this was done because Mr Mendy’s contract allowed such action, or we can only presume that it was done in reliance on the principle that if an employee is unable to comply with the terms of their contract of employment, then an employer may be entitled to withhold pay.
During Mr Mendy’s criminal trial, by his own account, he told the Tribunal that he contravened Covid lockdown rules whilst they were in place, as well as partying and consuming alcohol which may have meant he was not capable of performing his duties for the club anyway, even if he was not already prevented from training and playing matches. Although it was Mr Mendy’s position that other players partook in similar activities at that time, it is likely that the club would have argued that this conduct would have resulted in further action against him, if known, ultimately leading to a dismissal or withheld wages. To note, employers are not able to use new information that comes to light after the event, to argue that an otherwise wrongful or unfair dismissal is fair. What they can do however, is rely on the new information to argue that any damages or compensation awarded as a result of a wrongful or unfair dismissal are limited to the point that they could have lawfully dismissed the employee as a result of the new information.
This case highlights the difficulties employers have when an employee is charged with a criminal offence. Unlike this case, where the allegations were set out to the club at the time, often an employer will not know what the charges are, and this can make it incredibly difficult for employers to know how to proceed. It is worth noting that unless you have a contractual right, employers can not generally suspend employee’s without pay, unless there are exceptional circumstances, which can lead often lead to additional pressures on employers.
Claire Hollins, a partner in the team, has provided some useful steps to follow if, as a business, you find yourself in a situation where an employee is arrested. See the article here.
We should get the outcome to this case soon where we will find out whether Mr Mendy has been successful in recovering the wages that were withheld, or whether the club had a lawful reason to deduct them.
If you would like to contact our team, please call 0161 832 3434 or email us at info@kuits.com.