The normal rule is that an employee who is ready and willing to work but is unable to do so by reason of sickness, injury or other unavoidable impediment will, if his contract continues and subject to its terms, still be entitled to pay.
In a recent case an employee, perhaps somewhat cheekily, argued that this meant he was entitled to pay for a period when he was prevented from coming to work because he had been remanded in custody pending the outcome of criminal charges, unconnected with his employment, brought against him (Burns v Santander UK Plc, EAT on 23 March 2011). His employer kept his job open until a final decision could be made at a disciplinary hearing following his trial, at which he was found guilty on at least one of the charges against him.
He claimed that the event which prevented his attendance at work until then was an unavoidable impediment as the decision to remand him in custody lay with the criminal courts, not with him. He therefore put in a claim for unlawful deduction from his wages. Unsurprisingly he lost at an employment tribunal and appealed to the EAT.
The EAT dismissed his appeal. The EAT agreed with the original tribunal that the “impediment” which prevented Mr Burns coming in to work was an avoidable, not unavoidable, one. The question was simply whether by his own voluntary actions Mr Burns had in whole or in part contributed to the state of affairs which led to his being remanded in custody and so unable to come into work. Clearly the answer was yes so there was nothing in the original tribunal’s decision which ran counter to the general principle noted at the start of this note.
Although on the facts of this case the outcome is not surprising, it raises the question of what the position would have been if the employee had eventually been found “not guilty” of any of the charges against him. Perhaps that would have involved the tribunal in having to look into the question which needed no consideration in the present case – had the employee behaved in a way which made his arrest and subsequent remand in custody unavoidable?
As noted above the normal rule is subject to the terms of an employee’s employment contract so clearly the message for employers from this case is that they should ensure that the terms of their standard employment contracts spell out clearly the position in regard to entitlement to pay if an employee is prevented from coming into work.