Non-Payment of Wages of Employee on Remand

Posted: 8th July 2011

The Employment Appeal Tribunal (EAT) has upheld a decision of the Employment Tribunal (ET) that an employee was not entitled to be paid his contractual wages during a period when he was remanded in custody pending the outcome of criminal charges unconnected with his employment (Burns v Santander UK Ltd.).

While he was in custody, Santander UK Ltd. did not pay Mr Burns his salary. On his release, he was suspended on full pay, pending a disciplinary hearing, and subsequently dismissed.
Mr Burns brought a claim for unlawful deductions from wages. The ET dismissed his claim, finding that his own actions were the reason why he was unable to work and his inability to do so was therefore avoidable. Mr Burns appealed against the ET’s decision on the ground that the decision to remand him in custody was the court’s, not his own, which meant that his inability to work was unavoidable.
The EAT considered whether by his own actions Mr Burns had in whole or in part contributed to the situation whereby he was unable to work. In its view, the ET had been correct in its finding that although he was ready and willing to work, the impediment to his doing so was avoidable. He had conducted himself in such a way that the judge in the criminal court ruled that he should be deprived of his freedom. He was in fact convicted of two of the 13 charges brought against him and the six months he had spent on remand was treated as part of his punishment.
The EAT held that the ET ‘was entitled to find that the Claimant’s remand in custody was an avoidable impediment giving rise to circumstances where it was to be implied that he was not entitled to his wages for the relevant period under the wage/work bargain that was the contract of employment between these parties’.
The appeal was therefore dismissed.
This decision means that an employer in such circumstances can put matters on hold, pending the outcome of the employee’s trial, before deciding what action to take.
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