The case was that of Mr B Mendy v Manchester City Football Club Ltd 2411709/2023. The Employment Tribunal ruled that Manchester City Football Club has to repay former player Benjamin Mendy the majority (£8.5 million) of the £11 million in wages withheld during the period when he was charged following allegations relating to rape and sexual assault offences.
What happened?
After charges were brought against him in late August 2021 following a number of allegations of serious sexual offences, Mendy was remanded in custody and suspended by the Football Association (FA) from all football related activities. No misconduct had been proven at that point, and the suspension was purely precautionary in nature.
Manchester City Football Club also suspended Mendy without pay shortly after the FA had done so and from then till he left the club in June 2023, his wages remained unpaid each month.
When totalled, the pay for this period was in the region of £11 million before tax.
At the start of 2023, Mendy was found not guilty of seven offences and the jury could not reach a verdict on a further two. He was then re-tried and in July of that year, was again found not guilty. In the wake of the verdicts, he brought an employment tribunal claim against Manchester City Football Club for unauthorised deductions from wages in contravention of Section 13 of the Employment Rights Act 1996 (ERA 1996).
What does the law say?
Section 13 of the Act says:
(1) An employer shall not make a deduction from wages of a worker employed by him unless—
(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or
(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.
The tribunal had to consider whether Manchester City Football Club had a legal entitlement to stop paying Mendy’s wages. They ultimately ruled that the Club was entitled to withhold Mendy’s salary for five of the 22 months during which he had not been paid.
The tribunal judge summed up:
“…I have concluded that Mr Mendy is entitled to recover some, but not all, of the sums claimed.
The overall period covered by the claim included two periods when Mr Mendy was remanded in custody – from 1 September 2021 to 7 January 2022 and, again, from 30 December 2022 to 17 January 2023. Outside these periods, he was prevented from fulfilling his contractual obligations (including training and playing) by the fact he was suspended by the Football Association (FA) and by his bail conditions. I found that Mr Mendy was “ready and willing” to work during the non-custody periods, and was prevented from doing so by impediments (the FA suspension and bail conditions) which were unavoidable or involuntary on his part.”
During their deliberations, the tribunal looked at the particular part of Section 13 where it says:
(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract
It’s worth noting that the standard form contract that the Premier League currently uses doesn’t deal with the deduction of wages in situations where an FA suspension and/or bail conditions prevent a player from performing his obligations. The judge referred to this.
“In those circumstances, and [without] any authorisation in the contract for the employer to withhold pay, he was entitled to be paid.
In contrast, during the periods when he was remanded in custody, his inability to perform the contract was, in part, due to his own culpable actions in breaching his bail conditions. In those circumstances, I have found that the Club was entitled to withhold pay for those periods.”
Although the sums involved in this case are far higher than in virtually all other withheld salary cases, it has nevertheless shone a light on the process of withholding wages from employees if they have been charged with an offence and how employers can do this without inviting legal claims from the affected employee.
What should employers bear in mind?
An employer who finds themselves in the position where an employee has been charged with a serious offence may think that it is best to withhold their wages during the process of prosecution and trial in case negative media coverage harms their reputation.
PR considerations aside, employers need to look at the issue with a cool head and think about whether this course of action is appropriate, lawful and may expose them to more risks than just opprobrium on social media and in the press.
A decision driven by emotion is rarely the right one; careful examination of the employment contract will be far more productive and could save much time and expense, as well as avoiding legal action further down the line.
Generally speaking, employers have an obligation to pay their employees, unless the employment contract says otherwise.
When can an employer legally withhold or deduct pay?
Usually, employers can only deduct money from employees’ wages if:
- it’s stated in the employment contract or in a separate written agreement
- doing so does not bring their pay below the National Minimum Wage
- it’s required by law. For example, student loan repayments
- it’s a statutory payment due to a local authority
- the employee has not worked due to industrial action
- expenses or wages have been overpaid
- a court order requires it; for example, child maintenance payments
All employers – and particularly those with higher profiles or who operate in the public eye – should think about whether it’s a good idea to look into getting legal advice on drafting and including a clause in the contract of employment to define the circumstances in which wages can be withheld. It will, however, all depend on the employer and the degree to which they consider this will be a problem. Prudence says that it’s better to have the clause and not need it than to need it and not have it.
Although withholding of pay could be classed as a breach of the employment contract, unless that contract has a clause to cover such things, the cap on awards for breach of contract in the Employment tribunal is £25,000 and a person can only bring such a claim once their employment is over.
Claiming for an unauthorised deduction from wages under Section 13 of the ERA 1996, however, has no cap to the award that can be made, although it’s worth noting that the period that can be included in the claim is limited to 2 years. It can also be made while the person is still in employment.
How can we help you?
As we’ve mentioned above, the contents of the contract of employment are key and it’s a very good idea to get yours checked over by experts in employment law.
rradar’s Employment team are highly experienced in all aspects of employment contracts and can work with you to check, update or overhaul your policies and procedures to make sure you and your business are protected from the prospect of legal claims against you.
Contact us today by clicking this link.