The case of Mr Mendy v Manchester City Football Club provides a sobering reminder to employers that where an employee is ready, willing and able to work, they are generally entitled to be paid regardless of external circumstances.

Background Facts

Mr Benjamin Mendy is a professional footballer who signed for Manchester City Football Club (the Club) in 2017 on a salary of £6,000,000 a year.

In 2021 Mr Mendy was charged with a number of serious sexual offences. He was initially released on bail following the charges but was remanded in custody from September 2021 to January 2022 for breaching his bail conditions. At the end of September 2021, the Club informed Mr Mendy that they would stop paying his wages and they continued to do so until his contract expired at the end of June 2023. In July 2023 Mr Mendy was cleared of all criminal charges.

Mr Mendy subsequently brought a claim to the Employment Tribunal against the Club for unlawful deductions from wages amounting to £11.5 million under section 13 of the Employment Rights Act 1996 (ERA 1996) for the period from 1 September 2021 to 30 June 2023.

The Law – Unauthorised Deductions from Wages

Under section 13 of the ERA 1996 it is unlawful for an employer to make a deduction from a worker’s wages unless:

• It is required or authorised by statute;
• It is required or authorised under the contract; or
• The worker has given their prior written consent to the deduction.

Unlawful deductions claims enable workers to claim unpaid, or underpaid wages from their employer whilst the employment relationship subsists. This is a useful avenue for workers who are still employed by their employer as workers cannot bring a claim for breach of contract until the employment has terminated.

There is no upper limit on the amount an employment tribunal can order to be paid where there has been an unlawful deduction from wages (although the period of compensation for a series of deductions is limited to the 2 year period prior to the date of the claim). In contrast, a claim for breach of contract is capped at £25,000.

In this case the Club argued that the deduction was required or authorised under the contract. In such cases, the matters to consider are:

1. Do the express terms of the contract permit the employer to stop paying wages?
2. If not, is there an implied term of the contract which would permit the employer to stop paying wages? (this includes a term implied through custom and practice).
3. If not, then the employer may, nonetheless be entitled to stop paying wages to an employee who is not “ready, willing and able” to work during the period in respect of which wages would otherwise be due.

The Decision

The Employment Tribunal held that Mr Mendy was entitled to recover some, but not all of the sums claimed.

It was agreed that there was no express contractual term for the non-payment of Mr Mendy’s wages. The Employment Tribunal held that there was also no implied term for non-payment of wages. Therefore, the burden rested on Mr Mendy to show that he was ready, willing and able to work, and that any impediment he found himself under was unavoidable.

The Tribunal determined that the Club was entitled to withhold Mr Mendy’s salary for the periods in which he was remanded in custody i.e., 1 September 2021 to 7 January 2022 and again from 30 December 2022 to 17 January 2023 (approximately 5 months). This was because Mr Mendy was unable to fulfil his obligations under his employment contract partly due to his own actions of breaching his bail conditions i.e., the impediment Mr Mendy found himself under wasn’t unavoidable.

However, for the periods that Mr Mendy was not in custody it was held that Mr Mendy was entitled to be paid. This is because his inability to fulfil his obligations under the employment contract when not in custody was primarily due to his suspension by the Football Association (FA) and his bail conditions. Mr Mendy had been willing to work during the non-custody period but was prevented from doing so by the FA suspension and bail conditions which were unavoidable and involuntary on his part.

As Mr Mendy’s claim succeeded for approximately 17 months of the 22-month period in question, he is expected to be awarded in the region of £8.5 million.

It is important to acknowledge that the sums involved in this case are far greater than the ordinary deduction from wages claims due to Mr Mendy’s exceptionally high salary. This was emphasised by Judge Dunlop when she said “I doubt that quite so much legal expertise and endeavour has ever before been expended in the prosecution and defence of a wages claim brought by a single claimant. But then, I am also fairly sure that no other single claimant has ever alleged that sums in the region of £11 million have been deducted from his wages.”

Lessons to learn

• Suspension is not a penalty and should generally be paid
• The general rule is that if an employee is ready, willing and able to work, they are entitled to be paid
• In cases where an employee is charged with a serious criminal offence related to off-duty conduct the employer should consider taking legal advice on proceeding with their disciplinary procedure despite the criminal case not having concluded

If you have any questions, please do not hesitate to contact the Geldards Employment Team below.