UK: employee entitled to wages for periods unable to work due to regulator suspension pending criminal proceedings

Employees who are unable to work due to external circumstances, such as regulatory suspension while an alleged regulatory breach is investigated or pending criminal trial, will still be entitled to full pay unless there is an express contractual provision entitling the employer to pay reduced or no salary. 

In Mendy v Manchester City Football Club, the tribunal held that Mendy was entitled to his salary while prevented from football activities for his club by an FA safeguarding suspension imposed following his arrest on charges of serious sexual offences (of which he was ultimately found not guilty).  He was granted bail without conditions, but was later taken into custody for two short periods due to breaching bail conditions and more restrictive conditions were placed on his bail preventing him from playing football (although the tribunal considered that these conditions might have been varied had the FA ban not precluded football activities anyway).  The tribunal held Mendy was not entitled to be paid for the periods when he was in custody, as this was due (at least in sufficient part) to his own actions in breaching his bail conditions.  However, he was entitled to pay for all the periods while on bail, as his inability to play was due to the 'unavoidable' impediment in the shape of the FA suspension.

Employers may wish to review their template contracts for senior employees and consider whether it is appropriate (and negotiable) to add an express clause permitting reduced or no salary and/or termination for cause in the event of lengthy criminal, regulatory or other investigations or suspensions.  Of course, such clauses should be exercised with caution and the benefit of legal advice.