Earlier this month the written judgment in the case of professional footballer Benjamin Mendy against his former club, Manchester City, was on the Employment Tribunal decisions website.
Employment Tribunal judgments have been publicly available online since 2017.
This case about a premier league football team not paying one of its players’ wages pitted two of the legal world’s ‘premier league’ figures against each other. Mendy instructed Nick de Marco KC of Blackstone Chambers who is described as the “go to” barrister in disputes in football.
Manchester City instructed Sean Jones KC of 11 Kings Bench Walk, a leading employment silk and well known in the employment law world for his “Humble Brag” fund raising campaign, persuading lawyers to make donations when they brag online about being listed in legal directories.
Manchester City stopped paying Mendy from the end of September 2021 after he was remanded in custody following accusations of serious sexual offences.
The club did not dismiss him but also did not pay him again until his fixed term contract with the Club came to an end in June 2023. Mendy signed for French club Lorient in July 2023.
The claim that was heard by the Manchester employment tribunal was a claim for unauthorised deduction from wages. Earlier this month the written judgment
This is the most common claim made in the employment tribunal, often for relatively small sums of money where an employer has not paid an employee’s final salary or holiday pay due. However, Mendy’s salary was £6m per year and this claim was for unpaid wages of £11m.
As employment judge Dunlop said in her judgment: “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 £11m have been deducted from his wages.”
Mendy was charged in August 2021 following serious allegations of rape and attempted rape and held in custody. He was also suspended by the Football Association from taking part in any football related activity (and that suspension remained in place until after the expiry of Mendy’s contract in June 2023). I
n September 2021 the club advised Mendy he would not be paid his wages while he could not perform his duties. In October 2021 the club put its own disciplinary procedure relating to Mendy on hold until the criminal process was concluded.
In January 2023 Mendy was found not guilty of seven charges with 2 further charges requiring a re-trial. He was then found not guilty of those remaining two charges. By then his contract with Manchester City had expired and he was not offered an extension. He signed for Lorient in July last year.
There was no express term in Mendy’s contract that permitted the club to withhold payment in these circumstances. Mr De Marco argued on behalf of Mendy that the club had a binary choice – to follow the dismissal procedure which would if a dismissal resulted have freed Mendy to contract with another club or to keep him under contract and continue paying him.
Mr Jones argued that there should be an implied term in the contract to permit an employer stoppling wages in these circumstances and that the FA suspension was a full impediment to Mendy being able to perform his contract.
Employment judge Dunlop found that the club was entitled not to pay Mendy for periods when he was held in custody, being two periods from 1 September 2021 to 7 January 2022 and again between 30 December 2022 and 17 January 2023.
However, she found that for other periods when Mendy was on bail but could not play because of the FA suspension he was nevertheless ready able and willing to work and therefore the Club should not have withheld his wages for these periods.
This judgment will involve some £8.5m being paid to Mendy.
As a general rule no awards as to costs are made in tribunal claims and each party pays their own legal bill regardless of outcome. Had Mendy decided to pursue his claim through the courts as a breach of contract claim rather than a tribunal claim for unauthorised deductions for wages he would have been made an award in respect of part of his legal costs having won part of his claim. Whilst a claim for breach of contract can also be brought in the employment tribunal the jurisdiction is capped at £25,000.
Mendy’s legal team will have considered carefully which route to follow before deciding on the tribunal route. Very likely this was because of a view that an unauthorised deductions from wages claim stood a greater chance of success than a breach of contract one and also possibly because Mr Mendy was willing to take the risk of paying his own legal costs, but not the risk of also paying Manchester City’s costs as well as his own if he lost.
Whilst not having the headline grabbing facts of Mendy’s case, employers are often faced with a situation where an employee is charged with a criminal offence for conduct outside of work but which could also be a misconduct offence at work due for instance to causing reputational damage to the employer.
Employers often decide they should await the outcome of the criminal matter before concluding their own disciplinary process and therefore whilst they may suspend employees who have been arrested or charged they continue to pay them. The BBC has been criticised for continuing to pay Huw Edwards after his arrest.
However, employers are not legally required to wait and are entitled to follow their disciplinary process while the criminal matter is ongoing. The process will be more complicated because the employees will be advised by their criminal solicitors not to comment at disciplinary hearings as this might prejudice their defence to the criminal charges.
Nevertheless, subject to proper investigation and following a fair process it is possible for an employer to reach a decision to dismiss fairly. In employment tribunals the test is not the criminal court’s burden of proof of whether the employee is guilty beyond reasonable doubt but whether the employer’s decision to dismiss was within the band of reasonable responses – that is whether the employer acted reasonably or unreasonably in treating that conduct as a sufficient reason for dismissing the employee.
Bethan Darwin a partner with law firm
