Benjamin Mendy is set to receive the majority of his unpaid wages after his former club Manchester City refused to pay it due sexual assault accusations. Rhys Wyborn says that employers should be careful if they withhold wages in a similar case to the one of Huw Edwards.
is now set to receive approximately PS8.5m from the unpaid PS11.5m salary of Benjamin Mendy.
After a three-year period of sex crime charges, he was cleared.
A similar case occurred earlier this year when Huw Edwards was found to have continued earning his salary five months after being arrested for taking indecent pictures of children.
The two high-profile cases raise questions about when employers can legally and appropriately withhold wages and the associated risks.
Difficult decisions
It can be tempting for employers to hold back wages when an employee is charged with a serious offense to avoid a scandal. This was the case in the Huw Edwards’ case, which caused outrage. Employers should not do this, especially if it isn’t specified in the contract.
It is easy to fall into this emotional reaction. However, employers have a duty to pay their workers, unless they have contractual reasons to do otherwise.
What’s in an employment contract is what determines the law.
In the absence of a contract that specifies specific situations where an employer may withhold wages, the employer is required to continue paying their employee in order not to breach an agreement.
However, there are some exceptions to the law that allow an employer to legally withhold or deduct wage. This is usually when an employee refuses to perform their part of the bargain, such as by refusing work.
Employers may also be required to deduct money from employees’ wages if they are on strike, if an employer has made a mistake, or if there is a court order or HMRC mandate.
Minimising risk
Employers can still be in hot water if they refuse to pay their employees.
If a tribunal case is filed, legal costs can add up quickly.
Tribunals may also have an impact on the ’employer’ brand of the company, which could affect its ability to attract and retain talent.
A public tribunal hearing can also have a long-term impact on consumer trust and confidence.
Brands with a high profile, or those that feel like they are part of the brand, such as charities, football clubs or the BBC, should take extra care when managing reputational risks.
It would be prudent for these high-profile companies to consider the inclusion of a clause into employee contracts that broadens the scope when wages can withheld or claimed.
It is up to the employer whether it’s a good idea to include clauses in contracts that allow for wage recovery.
Every employer is unique, but there are a few factors to consider, such as the likelihood that a story will be covered by the media and the amount of attention it may receive. Also, you should think about the long-term effects on the brand’s reputation or trust among its customers and stakeholders.
Repercussions
Employers should take care when drafting clauses if they are considered necessary. Employers can withhold wages if an employee refuses to work. However, in cases like Benjamin Mendy’s, where employees are prevented from performing their duties by third party conditions or court orders, this is not considered a refusal to work.
If challenged in court, these tiny differences within a contract can have huge consequences.
These clauses may also give the impression that the employer is presuming wrongdoing even before the employee has been found guilty by a court.
The employee may also be able to bring a claim for unfair dismissal if they have the required service. This right will soon be reduced to a “day-one” right as part of the government reforms. Therefore, employers are advised to consult a professional before drafting a contract, and to only include this clause in contracts when it is a key employee such as a public figure or senior director.
Be careful when you walk
The BBC attempted to make amends in the wake of Huw Edwards’ scandal by announcing it would seek to recover Edwards’ substantial salary for the five months following his arrest.
Employers would have no choice in this matter unless it was specifically stated in the contract. It would be up to the goodwill and willingness of the employee.
The recent high-profile cases of Mendy Edwards and others have brought this issue to the forefront, increasing the awareness that an employee has the right to claim wages wrongfully withheld.
These cases are a warning to employers that they should tread carefully as the reputation of their company could be at stake.
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