Burns v Santander UK Plc

Under a contract of employment, wages may remain payable where a worker is ready and willing to work but is prevented by sickness, injury or another unavoidable impediment, subject to the contract.

Where the impediment is avoidable because the worker’s voluntary conduct contributed to the inability to attend work, the wage-and-work bargain may instead imply that wages are not payable for the period of absence. This may apply during remand in custody arising from the worker’s conduct, even though the immediate decision to remand was made by a criminal court.

The claimant, a branch manager, was remanded in custody pending trial on criminal charges unconnected with his employment. His employment contract continued, but his employer did not pay him during the period of remand. He was later convicted of two offences and dismissed after a disciplinary hearing.

The Employment Tribunal held that the claimant’s inability to attend work was an avoidable impediment arising from his own conduct. It concluded that wages were not properly payable for the purposes of section 13(3) of the Employment Rights Act 1996. The appeal concerned whether that conclusion was legally permissible.

1. Appeal dismissed. The Employment Tribunal’s decision that there had been no unlawful deduction from wages was upheld.
2. A worker who is ready and willing to perform the employment contract may remain entitled to wages where inability to work results from sickness, injury or another unavoidable impediment, subject to the contractual terms.
3. Conversely, where inability to attend work results from an avoidable impediment, the contract may imply that wages are not payable because the worker has failed to provide the consideration for the wage-and-work bargain.
4. The immediate decision to remand the claimant was made by the criminal court. That did not determine whether the impediment was avoidable for employment purposes. The relevant question was whether the claimant’s voluntary actions had contributed, wholly or in part, to his being unable to attend work.
5. On the facts, the Tribunal was entitled to find that the claimant’s remand was an avoidable impediment. The Tribunal’s reasoning was not undermined by the fact that he had not been convicted when the employer stopped payment. His subsequent convictions and the treatment of time on remand as part of the punishment supported the Tribunal’s conclusion.
6. The EAT derived no direct assistance from authorities concerning frustration of contract or industrial action.

• Employment Appeal Tribunal: upheld the Leeds Employment Tribunal’s decision dated 10 August 2010 that no unlawful deduction from wages had occurred.