In this appeal case Burns v Santander UK Plc the question was whether the court could properly conclude that the employee was not entitled to be paid his contractual wages by his employer during a period whilst he was remanded in custody pending the outcome of criminal charges (unconnected with his employment). The employee had been working for his employer for over a year and on 8 February 2009 he was arrested and charged with several criminal offences. The following day he was remanded into custody and remained there until 17 August 2009 when, following a trial he was found guilty of two assault charges. He was found not guilty of the remaining charges. He was then released on bail and on 16 October was sentenced by way of a non-custodial disposal; a suspended sentence of imprisonment combined with an order for unpaid work and a supervision order. During his time on remand his employer wrote to him on 20 February stating that he would not be paid whilst in custody. He was not paid from 9 February until his release on bail pending sentence on 17 August. Upon release he was suspended on full pay until his dismissal following a disciplinary hearing held on 3 September. He appealed unsuccessfully against his dismissal internally and presented his form ET1 to the Tribunal on 11 December 2009 complaining of unfair dismissal, breach of contract, unlawful deductions from wages and holiday pay. This appeal is only concerned with the unlawful deductions claim. The tribunal identified the issue before them as whether wages were properly payable to him for the purpose of section 13(3) of the Employment Rights Act 1996 during the period he was on remand. He was ready and willing to work; however he was unable to do so because he was in prison. They found that his inability to work was avoidable. As a result of being charged with criminal offences and being remanded in custody, he had disabled himself from attending work so the court ruled that there was no unlawful deduction. The event which prevented the Claimant’s attendance at work was unavoidable; the decision to remand him in custody lay with the criminal courts, not with him. Accordingly he was entitled to be paid wages during his period upon remand. The Tribunal concluded with the following: “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.”
TUPE AND COLLECTIVE BARGAINING
29 June 2011 The way TUPE applies to contractual collective bargaining arrangements has been thrown into doubt, following a decision of the Supreme Court in the case of Alemo-Herron v Parkwood Leisure Limited . Eversheds reports:
CIPP Policy News Journal
09/10/2012, Page 37 of 234
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