Appeal No. UKEAT/0500/10/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 March 2011

Before
HIS HONOUR JUDGE PETER CLARK
MR P SMITH
MISS SM WILSON CBE

MR P BURNS
	APPELLANT

SANTANDER UK PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR M WALKER
(Representative)	
For the Respondent	MR S MARGO 
(of Counsel)
Instructed by:
Messrs Eversheds LLP
Kett House
Station Road
Cambridge
CB1 2JY	

SUMMARY
UNLAWFUL DEDUCTION FROM WAGES

Non-payment of wages by employer whilst employee was remanded in custody pending his trial on criminal charges.  Employment Tribunal conclusion that there was no unlawful deduction affirmed on appeal.

HIS HONOUR JUDGE PETER CLARK

1.	The question in this appeal, brought by Mr Burns, the Claimant before the Leeds Employment Tribunal, is whether that Tribunal could properly conclude, by a judgment with reasons dated 10 August 2010, that he was not entitled to be paid his contractual wages by the Respondent, his employer Santander UK Ltd, during a period whilst he was remanded in custody by a Criminal Court pending the outcome of criminal charges, unconnected with his employment, brought against him.

The Facts
2.	The Claimant commenced employment with the Respondent as a branch manager on 1 October 2007.  On 8 February 2009 he was arrested and charged with 13 criminal offences, including a physical assault on a prostitute in a car and sexual assault on a girl.  The following day he was remanded into custody by the Justices.  He remained in custody until 17 August 2009 when, following a trial at the Bradford Crown Court, he was found guilty of one charge of common assault and one of assault within intent to commit a sexual assault.  He was found not guilty of the remaining charges against him.  He was then released on bail and on 16 October was sentenced by way of a non-custodial disposal; a suspended sentence of imprisonment combined with an order for unpaid work and a supervision order.

3.	During his time on remand the Respondent wrote to him on 20 February stating that he would not be paid whilst in custody.  He was not paid from 9 February until his release on bail pending sentence on 17 August.  Upon release he was suspended on full pay until his dismissal following a disciplinary hearing held on 3 September.  He appealed unsuccessfully against his dismissal internally and presented his form ET1 to the Tribunal on 11 December 2009 complaining of unfair dismissal, breach of contract, unlawful deductions from wages and holiday pay.  In this appeal we are concerned only with the unlawful deductions claim.

4.	On those largely uncontroversial facts the Tribunal identified the issue before them as whether wages were properly payable to him for the purpose of section 13(3) of the Employment Rights Act 1996 during the period he was on remand.  He was ready and willing to work, however he was unable to do so because he was in prison.  They found that his inability to work was avoidable.  As a result of being charged with criminal offences and being remanded into custody, he had disabled himself from attending work, his consideration for the payment of wages under the contract (which continued until dismissal; it was not frustrated or otherwise ended earlier).  There was no unlawful deduction.

The Appeal
5.	In advancing this appeal Mr Walker does not quarrel with the proposition stated in Harvey on Industrial Relations and Employment Law Volume 1, section B(I), paragraph 14(a), that:
“A worker who is ready and willing to perform his contract but is unable to do so by reason of sickness, injury or other unavoidable impediment may, if the contract continues and subject to its terms, still be able to claim his wages thereunder.”  

The learned authors go on to deal with the worker who deliberately refuses to work; that is not this case.

6.	We drew the attention of counsel to the Court of Appeal’s decision in Mears v Safecar Security Ltd [1982] ICR 626 where on its facts the court declined to imply a term in the absence of an express term that the employer would pay sick pay during the employee’s sick absence.

7.	The question is whether the obverse is true.  If the absence is avoidable at the hands of the employee, is there to be implied, in the absence of any express term, a term that wages are due under the contract where the employee’s inability to work is due to an avoidable event?  

8.	The thrust of Mr Walker’s submission is that the event which prevented the Claimant’s attendance at work was unavoidable; the decision to remand him in custody lay with the criminal courts, not with him.  Accordingly he was entitled to be paid wages during his period upon remand.

9.	That submission is correct, up to a point.  The decision to remand was the court’s and not the Claimant’s.  However, the question for the Tribunal was whether by his own voluntary actions the Claimant in whole or in part contributed to that state of affairs.  Mr Walker may or may not be right in saying that had the Claimant been charged only with the offences of which he was subsequently convicted then he may have received bail and then been suspended by the Respondent on full pay.  However, that is not what happened and ultimately he was not acquitted on all charges.

10.	In these circumstances we have concluded that the Tribunal’s analysis at paragraph 7.3 of their reasons cannot be faulted as a matter of law.  They said this:

“The Tribunal accepted that a worker who is ready and willing to perform his contract but is unable to do so by reason of sickness or injury or other unavoidable impediment is entitled to claim his wages.  However, the Tribunal also accepted that a worker who is ready and willing to perform his contract but unable to do so by avoidable impediment is not entitled to wages. Although the Claimant had not been convicted of any offence at the time of the Respondent’s decision not to pay him he had conducted himself in such a way that, according to the Judge in the Criminal Court, he should be deprived of his freedom and therefore deprived of his right to attend work.  This principle was confirmed by the fact that he was actually convicted of two of the nine charges at his trial and the six months spent on remand was treated as part of the punishment.  It is true that the Respondent did not pay him but at the same time they kept his job open until a final decision could be made at a disciplinary hearing following the Claimant’s trial.  They also paid him at the end of his time on remand when he was suspended on full pay.”

11.	The Tribunal continue at paragraph 7.4:

“The Claimant’s contractual entitlement to pay ended when he did not provide consideration for it by attending work.” 

12.	In our judgment, the Tribunal 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.

13.	That is sufficient to dispose of this appeal.  It fails and is dismissed.

14.	In arriving at this conclusion we have not derived any direct assistance from the frustration cases, e.g. FC Shepherd & Co. Ltd v Jerrom [1986] ICR 802, CA, nor the industrial action cases such as Miles v Wakefield Metropolitan District Council [1987] ICR 368, HL.