UPDATE: What to do when an employee is charged by the police

James Howarth, Associate

UPDATE: Benjamin Mendy v Manchester City Football Club

Following on from the article we wrote last month (which you can read here) regarding this case, we now have the outcome.

Former French International footballer Benjamin Mendy, who played for Manchester City Football Club, had brought a claim against the club for the unlawful deduction of around £11m in wages. The club had suspended him without pay until his contract with them expired, after he was charged with rape and various sex offences in 2021.

Between August 2021 and the expiry of his contract in June 2023, at various times he was either remanded in custody, released on bail and/or suspended by the Football Association and prevented from fulfilling certain contractual obligations for the club (including training and playing).

It was the club’s position, that because he could not comply with his contract, they were entitled to withhold his pay. It was Mr Mendy’s view that he was wrongly accused, and that the club withheld his pay as they presumed his guilt. Mr Mendy was later acquitted of all the charges brought against him.

The decision in this case was that Mr Mendy was entitled to recover some, but not all, of the sums claimed through his unlawful deduction of wages claim. Apart from the time he was in custody, which was as a result of his own conduct by breaching his bail conditions, the Employment Judge found that that Mr Mendy was in fact “ready and willing” to work.

Apart from when he was in prison, which the Employment Judge decided was Mr Mendy’s culpable conduct that was separate from the underlying criminal allegations, he was only prevented from “working” by impediments (the FA suspension and bail conditions) which were unavoidable or involuntary on his part. They had been triggered by the criminal allegations, which at the time were unproven, as opposed to Mr Mendy’s conduct. The FA suspension was considered to be a precautionary measure given the allegations, rather than a punitive act to punish him for his behaviour.

Interestingly, both representatives in the case sought to argue as to whether Mr Mendy deserved to be paid his wages given his conduct during the time period in question. That was an irrelevant consideration in an unlawful deduction of wages claim. Given the determination above, if Mr Mendy was ready and willing to work, the decision was then solely around whether the club were legally entitled to withhold pay in the circumstances.

S.13 of the Employment Rights Act prevents employers from deducting the wages of a worker unless there is 1) a statutory provision that allows the deduction, or 2) there is an appropriate provision in the workers contract, and they are consented to that deduction.

Upon review of Mr Mendy’s employment contract, there was no express contractual authority that allowed the club to stop paying him his wages. There were provisions for dismissal, suspension and an ability to impose fines on players for disciplinary purposes and Mr Mendy had received various such fines by the club.  However, there was nothing in relation to withholding pay for such a long period of time.

In fact, the club had originally suspended Mr Mendy on full pay in August 2021 for an initial 14 days, and then a further 28 days in September. It was only after this initial paid suspension that Mr Mendy’s payments stopped on the 28 September 2021.

The club wrote to him to say that their investigations into the matter were paused, pending the outcome of the criminal proceedings, but because he was suspended by the FA, and had been remanded to custody, he was not “ready and able” to perform his duties, and as such, was not entitled to pay. This was incorrect, and there was no contractual authority to take such action.

The Employment Judge concluded that the parties should now agree the amount of unpaid wages owed, given the judgement made. It is anticipated that this will amount to around £8.5m in compensation. Given the sums involved it may be that the club decide the appeal this decision but, for now, it remains one of the most expensive claims for unlawful deductions from wages both in terms of the amount claimed and the sums spent on the case.

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