Suspension: to pay or not to pay? What employers can learn from the Benjamin Mendy and Huw Edwards’ cases

In recent months, high-profile news stories have highlighted complex issues surrounding suspension and unpaid wages under UK employment law. These cases underscore the legal challenges faced by both employers and employees when serious allegations of misconduct are made against individuals in the public glare. In particular, they highlight the care that needs to be taken in the immediate aftermath of allegations being raised, including in respect of suspension and pay pending internal and criminal investigations.

Benjamin Mendy: the brief facts

Former Manchester City defender Benjamin Mendy was charged with multiple counts of sexual offences, which ultimately led to his suspension without pay in August 2021. He was suspended until June 2023, during which period his contract with City expired. In July 2023, Mendy was cleared of all charges. Mendy is now claiming £11.5 million in unpaid wages at the Employment Tribunal, arguing that his suspension without pay was unfair given the outcome of his case. He contends that his employment contract entitled him to continued pay until proven guilty. City’s counter argument is that, once Mendy had been remanded into custody, he was unable to train or play for City, which constituted his “core duties” as an employee of the club. Further, after he was later released on bail, his bail conditions prevented him training or playing for his club.

Huw Edwards: the brief facts

In November 2023, former BBC broadcaster Huw Edwards was arrested following allegations of sexual misconduct and suspended until his resignation in April 2024, during which period he continued to receive his full salary of approximately £475,000 per annum, as well as a pay rise of £40,000. Following Edwards pleading guilty to some of the criminal charges against him, and his subsequent sentencing, it has been reported that the BBC is seeking to recover £200,000 of the salary paid to Edwards during investigations.

Can pay be withheld during suspension?

The law on suspension varies depending on the nature of the allegations raised against the employee being suspended and the terms of their employment contract. Suspension should always be approached with care by employers. For those employers dealing with allegations of misconduct against high-profile employees, a strong public reaction can often spur an employer into making “knee-jerk” decisions to protect their own reputation, which can often cause problems down the line, and give rise to future claims if such decisions conflict with the employee’s contractual and/or statutory rights. The position on suspension is often particularly challenging in the context of concurrent employment and criminal investigations, especially as the latter can be subject to lengthy delays and often takes priority over an internal employment investigation.

As stated in the ACAS Code of Practice on Disciplinary and Grievance Procedures (and often mirrored in contracts of employment and/or disciplinary policies), in cases where a period of suspension is considered necessary, any such period should be as brief as possible and be kept under review. In most cases, an employee under investigation will be suspended on full pay and benefits, to maintain the appearance of neutrality and maintain employment rights for the individual concerned. Employers rarely suspend employees without pay unless there are exceptional circumstances, such as when the employment contract explicitly allows for unpaid suspension in certain cases (eg alleged gross misconduct). However, even if there is a contractual right to suspend without pay, doing so may risk breaching the implied term of trust and confidence between the employee and employer.

Suspension without pay can lead to claims being brought for unlawful deduction from wages, as seen in the Mendy case. In order to defend any such claim, the key lines of argument for an employer are to show that:

1. The deduction is required or authorised by a statute or a provision in the employee’s contract,
2. The worker has given their prior written consent to the deduction, and/or
3. The wages forming the basis of the claim are not “properly payable” in the first place.
   
   

It is point three above that appears to form the crux of City’s response to Mendy’s Employment Tribunal claim, on the basis that Mendy was absent from work, unable to perform his duties and therefore not entitled to be paid while absent. The starting position is that there is no right to wages unless work is actually done, absent any specific agreement to the contrary.

Case law is likely to assist City in its arguments. In Burns v Santander UK plc, the Employment Appeal Tribunal held that an employee remanded in custody pending a criminal trial was not entitled to his wages, as the employee’s conduct had implied that he should be deprived of the right to attend work or be paid. Similarly, in Rodliffe v Rodliffe, the High Court held that an employee-director, arrested and bailed with conditions preventing him from contacting a co-director or attending the business premises, had "disabled himself by his actions from doing any work" and therefore was not entitled to his salary.

Can salary paid during suspension be recovered?

The most common circumstances in which salary may be recovered are where the employee has agreed to a deduction being made or where the employer has a contractual right to make the deduction. It is unlikely that either of these scenarios apply in Edwards’ case, in which case it is difficult to see how BBC will seek to recover from Edwards’ paid salary which he was contractually owed. Therefore, given the legal hurdles faced by the BBC, it may be left to Edwards to “do the right thing” and repay the money based on his moral obligation (which he may feel compelled to do, given the public calls to urge him to do so).

Practical Tips for Employers

Given the complexities highlighted by the Benjamin Mendy and Huw Edwards cases, employers should adopt clear and legally compliant practices when considering suspending employees, pending investigation. Practical tips for handling suspensions include:

1. Incorporate clear suspension provisions into employment contracts

Ensure that employment contracts clearly outline the terms and conditions which shall apply when implementing and during suspension, including whether it will be with or without pay, and under what circumstances wages can be withheld and/or recovered.

2. Use suspension only when necessary

Suspension should generally be a last resort, used only where it is crucial for an impartial investigation to be conducted or when an employee’s presence could risk harming or otherwise adversely impacting fellow employees, customers or other business interests. Suspensions should be implemented in a non-punitive manner, with consideration given to alternatives beforehand and, in more complex/nuanced scenarios, legal advice sought prior to imposing suspension.

3. Document all decisions

It is crucial to document all decisions relating to suspension, including the reasons for suspending an individual and imposing specific terms, and communicate those to the employee. This can help an employer to later evidence their rationale for making suspension decisions, in the event their decisions are subsequently challenged by the suspended employee.

4. Conduct timely investigations and review suspension

Prolonged suspensions can be costly and stressful. Employers should strive to conduct investigations promptly and efficiently, ensuring that suspensions are kept to a minimum duration and reviewed regularly. This can help mitigate against the risk of claims arising from prolonged (and, possibly, unreviewed) suspensions, as was the case for Mendy, having been suspended for a significant period of time without pay.

For more information, see our blogs: Suspension during ongoing investigations: a balancing act and Acas guidance on suspension: the top 10 things to bear in mind when considering suspension

With special thanks to Heeteshini Mohungroo, a current paralegal in the Employment team, for their help with this blog.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2024