Footballer substantially succeeds with unlawful deductions claim for £11 million

In the case of Mendy v Manchester City Football Club Limited an Employment Tribunal (“ET”) has considered whether it was lawful to withhold the wages of a footballer charged with serious sexual offences and subject to a football ban.

Background

In 2021, professional footballer, Benjamin Mendy was charged with rape and sexual assault while contracted with Manchester City Football Club (“the Club”).

Mendy was remanded in custody on two occasions for around five months in total and subjected to a Football Association (FA) ban preventing him from taking part in football related activities.

The Club stopped paying Mendy’s wages, around £500,000 per month, soon after he was charged with the offences in 2021 until the end of his contract with the Club in June 2023.

Mendy was cleared of all charges in 2023.

Mendy brought a claim to the ET for unlawful deductions from wages in the region of £11 million, representing the 22 months that his wages were not paid.

The Law

Sections 13 to 27 of the Employment Rights Act 1996 (“ERA 1996”) set out the provisions that protect workers from unauthorised deductions being made from their wages.

Under section 13 of the ERA 1996, where the total wages paid on any occasion by an employer to a worker is less than the amount of the wages “properly payable” on that occasion, the deficit counts as a deduction.

The central question in this case was whether the wages claimed were “properly payable” as there cannot be a deduction unless the wages claimed are properly payable in the first place.

The Club defended the claim on the basis that Mendy was unable to fulfil his contractual duties due to being remanded in custody, his bail conditions and the FA ban.

When deductions have been made because a salaried employee is absent from work, unless there is an express clause in the contract of employment which deals with the specific point (which in this case there was not), the ET has to consider if the employee is “ready and willing to work” when considering if the wages were “properly payable”.

Previous case law has held that an employee may still be entitled to wages if they are prevented from working by an “unavoidable impediment”.

Decision

The ET substantially upheld the claim for unlawful deductions from wages.

The ET held that the Club had been entitled to withhold wages in relation to the two times that Mendy was held in custody (around 5 months) due to him breaching his bail conditions. However, it went on to find that Mendy was “ready, able and willing to work” during the times that he was not on remand but was prevented from working by the FA ban and bail conditions which were “unavoidable or involuntary on his part”.

The ET concluded that Mendy was entitled to 17 months of unpaid wages out of the 22 months claimed, amounting to around £8.5 million.

Comment

It is important to note that this is only an ET decision and so is not binding. However, the decision that the bail conditions were unavoidable and involuntary on Mendy’s part is interesting and distinguishes this decision from previous case law decisions concerning, for example, the impact of remand on an entitlement to receive pay.

The decision also highlights the significant amounts that an ET can award and the importance of setting out a claim correctly. Had this claim been brought as a breach of contract claim in the ET, which wages claims often are, any award would have been limited to a maximum of £25,000. Indeed, the judgment suggests that Mendy may pursue further payments “in another forum”.

The decision will be open to appeal.

Case reference:  Mendy v Manchester City Football Club Ltd ET/2411709/23