Background:

The claimant is a professional footballer. He was signed by, and became an employee, of the respondent in 2017. In August 2021, the claimant was remanded into custody following a number of sexual assault allegations.  At the end of September 2021, the respondent informed the claimant that it would stop paying his wages. It is notable that the player was also suspended by the Football Association which was done on a precautionary basis and related to safeguarding young people. This position continued until June 2023 when he was transferred to a French club. The claimant was subsequently cleared of all criminal charges and he sought repayment of his wages.

The claimant’s contract outlined a basic wage of £6,000,000 per year payable monthly.  There were other bonuses the claimant could have been entitled to but these were not outlined in the judgment as they were not part of the claim. The contract of employment set out a number of relevant clauses. This included an obligation not to knowingly or recklessly do anything or omit to do anything which could bring the game into disrepute and a further clause to ensure that the claimant maintained a high standard of physical fitness. There was also a further financial clause which stated that the claimant would be entitled to one month’s wages post-termination less any pay he would receive with a new club.

The claimant was released on bail in January 2022 and his solicitor emailed the respondent stating that he could return to training. This could not be facilitated due to the FA suspension which related to all football activity. It was January 2023 when the trial concluded leading to acquittal.

Outcome:

The issue was whether the claimant was able to recover his wages from when they stopped in September 2021 until the end of his contract in June 2023. The Tribunal looked at the contractual position and it was agreed by the parties that there was no express contractual authority for the non-payment of the claimant’s wages. The respondent argued that there was an implied term which would have allowed for non-payment but it was rejected.  Further, the Tribunal stated that it was for the claimant to demonstrate that he was ready, willing and able to work. The Tribunal did note that if the star defender had decided to eschew casual sex and parties and chose to spend evenings playing board games at home he may not have found himself in the same circumstances.  However, that does not mean that the claimant only had himself to blame.

In coming to the decision the Tribunal looked at the pertinent points in time and whether he was ready, willing and able to work. Accordingly, there was a distinction drawn between the periods in which the claimant was in custody and those in which he was on bail. Even though there was the FA suspension it would not be appropriate to withhold pay in that situation as there was no avoidable impediment to the claimant returning to work.

On the issue of the contractual clause allowing for one month’s wages post-termination, this was not a deduction from wages and did not fall within the claim made by the claimant. Overall, the claimant is entitled to payment for the times in which he was not in custody.

Practical Guidance for Employers:

A high-profile case considering the parties involved. The case does provide some useful legal arguments, albeit that they are unlikely to arise with such vast sums again, when it comes to withholding pay when an employee is suspended.  The general rule is that the employee will still be entitled to their pay but where they are not ready, willing and able to work then that could allow for it be withheld. However, the Tribunal has looked at that restrictively so that it was only the periods of custody in which no pay could be given and it did not cover the whole period of suspension by the Football Association.

https://www.judiciary.uk/wp-content/uploads/2024/11/Mendy-v-Manchester-City-FC-judgment.pdf