Non-payment of wages while an employee is on remandSunday, June 12th, 2011
If an employer does not continue to pay an employee who is remanded in custody, charged with criminal offences, is that an unlawful deduction from wages?
In a decision given on 23 March, but just published, in the case Burns v Santander UK Plc, the Employment Appeal Tribunal (EAT) ruled that, if an employee is charged with criminal offences and remanded in custody, there is an avoidable impediment depriving the employee of the right to wages during the period of remand.
Mr Burns was arrested in February 2009 and charged with a number of serious criminal offences. He was in custody until August 2009 when he was found guilty of two of the offences. He was given a non-custodial sentence which included his period on remand. His employer did not pay him while he was in custody but, on his release, he was paid in full while on suspension and up to his subsequent dismissal. Mr Burns complained to the Employment Tribunal of unfair dismissal and unlawful deductions from wages and holiday pay. The appeal related solely to the Employment Tribunal’s ruling that the non-payment of wages during the period of remand was not an unlawful deduction of wages.
The established principle is that a worker continues to be entitled to wages if he is ready and willing to work but cannot do so because of sickness, injury or other unavoidable impediment. On behalf of Mr Burns, it was argued that his absence from work was “unavoidable” because he had been detained by the court. The EAT accepted this in principle but held that the question for the Tribunal was whether, by his own voluntary actions, Mr Burns contributed to the situation in whole or in part.
The EAT confirmed the Tribunal’s reasoning that a worker who is unable to work under his contract due to an avoidable impediment, even though he may be willing to work, is not entitled to wages. Even though he had not been convicted at the time his employer stopped payment, he had conducted himself in such a way that he should be deprived of his freedom, as subsequently confirmed by the guilty finding of the court.