Footballer Benjamin Mendy shoots and scores in the employment tribunal

It seems like former Manchester City footballer, Benjamin Mendy just scored a major goal in his employment tribunal match against his former employer, Manchester City Football Club Limited. The French defender brought a claim for £11million for unauthorised deductions from wages after the football club stopped paying him while he faced criminal charges, for which he was later acquitted.

Part of our post match analysis includes a little refresher when it comes to the question of whether an employer can withhold wages from an employee who has been suspended to help employers avoid an own goal.

The pre-match

Mendy signed a six year fixed term employment contract with the Manchester City in 2017, that included a £500,000 monthly salary when he was just 23 years old. The tribunal commented that he “developed a taste and habit for partying” and “casual sexual encounters.”

Mendy was arrested in January 2021 and was later released on conditional bail. The conditions of his bail included a requirement that he stay at his home address in Cheshire overnight unless he was required to travel for work, and that he was not to have guests at his home. The bail conditions did not prevent him from playing football and, the tribunal noted, they only sought to “prevent him from partying”.

Mendy was not going to let this block him. Whilst on bail, he attended a number of parties in Manchester where he stayed overnight and hosted at least 6 parties at his Cheshire home, in breach of both his bail conditions and the Covid 19 restrictions in force at the time. Mendy was arrested again for his beach of his bail conditions and was remanded in custody from 1 September 2021 until 7 January 2022 because of his past bail violations.

The day after Mendy was re-arrested in late August 2021 he was suspended by the Football Association (the FA) the terms of which prevented Mendy from taking part in “any football-related activity”. The FA cited “safeguarding concerns” for the primary reason for the ban because one of the individuals who made allegations against Mendy was 17 years old. When Mendy was remanded in custody in September 2021 Manchester City maintained his suspension but this time without pay until the end of his fixed term contract in 2023.

By July 2023, Mendy had been acquitted on all charges.

The playbook

Unauthorised deductions are a sliding tackle from an employer and occur if they withhold sums from an employee’s wages without consent or justification where that person is ‘ready, willing and able’ to work. This type of play is prohibited by section 13 of the Employment Rights Act. Wages include remuneration such a bonus, holiday, maternity, and sick pay.

An employer will be offside unless it can show:

• the employee consented to the deduction;
• there is an express term in the contract of employment entitling the employer to deduct wages;
• there is an implied term of the contract resulting from some custom or practice; or
• if deductions are required by law (e.g. income tax deductions).

Mendy successfully argued that there was no express term in the employment contract permitting the deduction of wages either express or implied and he did not consent to the deductions and they were not required by law. In the circumstances, the case turned on the question of whether or not Mendy was ‘ready, willing and able’ to work. With the FA ban in place over the relevant period, it might initially seem to be an ‘open and shut’ case but the decision shows, there is rarely such a thing in the muddy midfield of unlawful deductions from wages.

Match day

The court analysed whether Mendy was “ready, willing and able” to work for the period of the suspension or if the FA ban on any football-related activity constituted:

• an impediment that prevented Mendy from working; and if so,
• was the impediment avoidable by Mendy?

When looking at point 1, the tribunal concluded that the FA ban was “a complete impediment to his ability to perform his contractual obligations,” and was enforced because the FA felt that they had a duty to safeguard young people due to the young age of one of the complainants.

In discussing point 2, the tribunal commented that, a footballer who “chose to spend his evenings playing board games at home with his family would not have found himself in the circumstances which gave rise to Mr Mendy’s FA suspension.”

The tribunal looked at a previous case of Gregg v North West Anglia NHS Foundation Trust, where a consultant in anaesthetics was suspended without pay after the General Medical Council (GMC) issued a temporary suspension, pending the outcome of a police investigation. It was held that Gregg’s suspension was a ‘neutral act’ and should not imply guilt and as such, the default position should be that, where there is no express right for an employer to deduct wages during such a suspension, an interim, non-terminatory suspension should not attract a deduction of pay, unless there are exceptional circumstances.

Following that case, the Tribunal held that the FA ban resembled the GMC suspension in Gregg, and “would fall far short of the sort of “exceptional” circumstances which would justify a departure from the general principle.”

The final whistle

The Tribunal therefore decided that Mendy was entitled to wages for the periods 8 January 2022 to 29 December 2022 and 18 January 2023 and 30 June 2023 when he was not in custody. That amounted to £8.5 million. It was determined that for the period of time he was not remanded in custody and simply under the FA ban, he was ‘ready, willing and able’ to play and therefore should have been paid his wages by Manchester City. He was not however entitled to wages for the period of time he was remanded in custody, (1 September 2021 to 7 January 2022 and 30 December 2022 to 17 January 2023) because, had he not breached his bail conditions so egregiously, he would have been granted bail and therefore this impediment to being ‘ready, willing and able’ to work, was ‘avoidable’.

Extra time

Mendy certainly scored a decisive victory and lifted the trophy. However, this case serves as a yellow card to many employers, warning them not to review the relevant employment contract to ensure that they have clear contractual provisions in place before withholding wages during a suspension and to ensure that contracts are drafted appropriately to provide that contractual right to withhold pay; this is especially important in industries that are regulated by an external body who can impose their own suspensions when necessary.

Should you have any queries in relation to the changes and their potential effect on your business or practical advice as to what steps can be taken, please contact Linky Trott, George Orman or any other member of our Employment Team.

 

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