In Mendy v Manchester City Football Club Ltd ET/2411709/23, an employment tribunal considered whether it was lawful for a football club to suspend the wages of a footballer charged with serious sexual offences and who was subject to a Football Association ban, for nearly two years.
The footballer Benjamin Mendy substantially succeeded in an employment tribunal claim against his former club, Manchester City (Club). He alleged that the Club made unlawful deductions from his wages contrary to section 13 of the Employment Rights Act 1996 for a period of almost two years when it stopped paying him while he was subject to a Football Association (FA) ban preventing him from taking part in any football-related activity. The ban stemmed from Mendy facing criminal charges of rape, including in relation to a minor. Ultimately, Mr Mendy was cleared of all criminal charges.
After reviewing previous case law on the meaning of an individual being “ready, able and willing” to work, Judge Dunlop concluded that Mr Mendy met these criteria during the periods he was not in custody, and was prevented from doing so. In those circumstances, and as there was no express contractual term that allowed the Club to withhold pay, Mr Mendy 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. Therefore, the Club was entitled to withhold pay for those periods.
Mr Mendy’s basic annual salary was £6 million. He sought unpaid wages of around £11 million. As his claim succeeded for approximately 17 months of the 22-month period in question, he is expected to be awarded approximately £8.5 million. The judge has instructed the parties to promptly agree on the final sum due.
Judge Dunlop stated, “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.”
The stakes in this case were therefore high for both parties. However, whilst the level of salary was unusual, the judgement establishes an important, general point of law on the withholding of pay during suspension.
