Are Employees Who Have Committed a Criminal Offence and Unable to Work Entitled to Wages?

If an employee is charged with an offence which means they cannot attend work, does the employer have to continue paying wages? If an employment contract contains a clause permitting or not permitting a suspension without pay when an employee commits an offence, the position is clear. However, a contract will not always provide for this.  The strict contractual position is that wages are not due unless the employee has provided consideration but there may be a continuing entitlement to pay when an employee is sick, injured or unable to work for another unavoidable impediment. The question here is whether being charged with an offence counts as an ‘unavoidable impediment’; wording that was used by Lord Brightman in Miles v Wakefield.

In Burns v Santander UK plc the Employment Appeal Tribunal (EAT) held that an employee remanded in custody pending a criminal trial was not entitled to his wages. Mr Burns was charged with 13 criminal offences and remanded in custody pending trial. Mr Burns was later convicted for common assault and assault with intent to commit sexual assault. Mr Burns’s employer stopped his wages when he was on remand.  The EAT considered that an employee may still be entitled to wages if prevented from working by an ‘unavoidable impediment’. However, the EAT upheld the Tribunal's decision that Mr Burns's detention was not ‘unavoidable’, because it was his fault, and gave rise to circumstances where it was to be implied that he was not entitled to his wages.

The EAT considered this decision in the case of Ekwelem v Excel Passenger Service Ltd. The employee, a driver, was suspended by his employer following a complaint of inappropriate conduct. The employer replaced suspension with unpaid leave  and the employee’s trial took place four weeks later. The employee was then offered non driving work which he refused, and was out of contact until he was acquitted. The employee was offered his original job back but he refused to take it unless he was paid back for the whole period of suspension. When the employer refused to pay, the employee claimed unfair dismissal and unlawful deductions from pay.

The Tribunal found against the employee because he refused to take the non-driving job. However, on appeal the EAT questioned whether the employee had a right to wages from the period of suspension to trial (when he was willing to work). Although it was accepted that the employee was not entitled to wages after he refused the offer of another job, the EAT quashed the decision that there was not an unlawful deduction. The Judge ruled that the Tribunal should have dealt with the different time periods separately.

Therefore, it may be the case that an employer cannot stop the payment of wages before it knows the result of the trial. Suspension of pay for teachers who have allegedly committed an offence would be particularly problematic if it is as a result of a complaint from a pupil with very little evidence. However, if the employee is convicted of the offence they have been charged with, and they are not able to attend work, it is generally accepted that they are not entitled to wages.