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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Burns v Santander UK Plc (Unlawful Deduction from Wages) [2011] UKEAT 0500_10_2303 (23 March 2011) URL: http://www.bailii.org/uk/cases/UKEAT/2011/0500_10_2303.html Cite as: [2011] UKEAT 0500_10_2303, [2011] UKEAT 500_10_2303, [2011] IRLR 639, [2011] UKEAT 0500 |
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EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
Before
MR P SMITH
MR P BURNS
SANTANDER UK PLC RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
(Representative) |
|
(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
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 class=ft> 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.
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.
“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.”
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.