Suspending employees - Huw Edwards and Benjamin Mendy judgments in the spotlight

When conducting a formal disciplinary process against an employee, employers need to follow the right process. The ACAS Code of Practice states that this can range from having “a quiet word” with an employee to giving a formal written warning or even demoting them. In some circumstances, however, an employer may have to consider suspension.

Suspension may be appropriate where an employee’s continued presence at work could be a potential threat to the business due to working relationships breaking down. Alternatively, suspension might be the most reasonable option to ensure a proper investigation can take place if there are concerns that the employee could destroy evidence of wrongdoing.

In any case, employers still need to follow the right process and keep certain considerations in mind, for example:

• Any period of suspension should be as short as possible;
• The decision to suspend should be kept under review;
• It should be made clear to the employee that suspension is not a disciplinary sanction;
• Any suspension policy has to be applied consistently to avoid discrimination;
• The employer should keep in touch with the employee to support their mental health;
• Employees should (normally always) continue to be paid during the period of suspension. An employer must have a contractual right to suspend without pay, but doing so will be only be reasonable in limited circumstances as it may be perceived as an assumption of guilt or punitive. In criminal cases, it is common to suspend on full pay until the employee is either convicted or acquitted.

Huw Edwards was suspended on full pay on 7 July 2023 – the same day that allegations of him paying a 17 year old individual for explicit photos emerged in the press. He was then arrested on 8 November 2023 for making indecent images of children and remained suspended by the BBC until his resignation on 22 April 2024.

The BBC has faced criticism in the press for continuing to pay Edwards while he was suspended during their own internal investigation and once the criminal investigation began. However, in light of the law and ACAS guidance on disciplinary investigations and suspension, this criticism seems quite harsh. The Mendy case, below, will highlight the risk of an employee taking legal action, and winning, when employers decide to withhold pay.

ACAS guidance states that for the right to suspend to arrive, suspension must be reasonably necessary in order to protect business interests. Given the severity of the allegations and the public nature of Edwards’ role, there were clear reasons for the BBC to suspend Edwards.

From an employment law perspective, the focus then turns to whether the BBC followed the right process in suspending Edwards. As mentioned above, the guidance states that, among other steps, employers should make the suspension as short as possible, keep it under review, and apply the suspension policy consistently. The BBC was also obligated to investigate and to try to obtain as much information as possible on the allegations. This was of course complicated by the fact that the allegations were unconnected to Edwards’ work.

Edwards was also publicly admitted to hospital with severe mental health issues soon after his suspension. At this point the BBC also had a legal duty of care to support the mental health of its employee. In these circumstances, Edwards’ health problems would likely have superseded any disciplinary process or investigation.

There is also a question as to whether the BBC could have dismissed Edwards after he was arrested on 8 November 2023. Criminal charges are not necessarily enough to justify disciplinary action – an employer needs to show the employee’s actions have impacted their suitability to do the job and to carry out a reasonable process to come to that conclusion. It is also of note that simply being arrested or charged with a criminal offence does not mean that the employee is guilty of the offence. In Edwards’ case, given the media frenzy which surrounded the allegations, there is a strong argument that the BBC’s best option was to take a step back and allow the criminal investigation to run its course. This approach allowed the employer to avoid a potentially costly claim for unfair dismissal.

In late August 2021 Benjamin Mendy was charged and remanded in custody following allegations of various sexual offences. At the end of September 2021, having been suspended, his former employer Manchester City FC (“MCFC”) decided to stop paying Mendy his wages. His suspension without pay lasted until June 2023 when he moved to a new club. Mendy was later cleared of all criminal charges and so he brought a claim for unauthorised deductions from wages (approximately £11 million) on the basis that suspension without pay was unfair given the outcome of the criminal proceedings.

In this case, the Employment Tribunal did not consider whether MCFC had suspended Mendy justifiably or not. This was because The FA issued a suspension on the same day (27 August 2021) which prevented Mendy from playing for MCFC. Instead, the key question became whether it was lawful for MCFC to withhold Mendy’s pay during the period of suspension.

Judge Dunlop drew on the case of Gregg v North West Anglia NHS Foundation Trust [2019] EWCA Civ 387 to decide how to approach the issue. The first step was to look for express or implied terms in the contract that permitted the employer to stop paying wages and the second was to look at common law to ascertain whether the employee was “ready, willing and able” to work during the relevant period.

Crucially, as with all Premier League players’ contracts (which are in prescribed form and collectively negotiated), there was no contractual right in Mendy’s contract for MCFC to withhold pay during a period of suspension. There was also no implied term permitting MCFC to stop paying wages whilst Mendy was suspended. Therefore, the common law position became the crux of the case – if Mendy was not ready, willing and able to work then MCFC may have been entitled to stop paying wages.

The Judge examined whether Mendy was prevented from being “ready, willing and able” to work due to “avoidable” impediments (i.e. impediments that were his own fault) or “unavoidable” impediments (i.e. due to external, third-party factors). If Mendy was not “ready, willing and able” to play due to avoidable impediments then MCFC were justified in withholding wages.

Judge Dunlop made two key clarifications. Firstly, it was sufficient for Mendy’s conduct to only be “in part” the cause of the impediment for it to be deemed avoidable. Secondly, this issue could not be determined by guilt, innocence or to the claimant being granted bail.

The judge identified four separate periods of bail and custody and analysed them to determine whether Mendy was subject to an avoidable impediment during each period:

Period 1 – first custody period – 1 September 2021 to 7 January 2022

The question was whether Mendy being in custody was an avoidable or an unavoidable impediment.

District Judge McGarva heard Mendy’s bail application and expressly referenced that breach of bail conditions influenced the decision to remand Mendy in custody. Therefore, Judge Dunlop concluded that Mendy was “in part responsible” for his not being “ready, willing and able” to work during this period and MCFC were entitled to withhold Mendy’s wages.

Period 2 – first bail period – 8 January 2022 to 29 December 2022

Judge Dunlop held that the impediment was the bail conditions imposed on Mendy. However, unlike Period 1, there was no evidence that these conditions were based on “previous breaches” of bail conditions. Without anything on the record, the Judge wanted to avoid “applying the Burns principle too widely” by inferring that the conditions arose due to previous breaches.

Therefore, the impediment was unavoidable and Mendy was entitled to recover his wages for this period.

Judge Dunlop went on to say that, even if this finding was incorrect, the FA suspension nevertheless represented an unavoidable impediment. The FA suspension was motivated by safeguarding issues due to Mendy allegedly having sexual relations with a minor.

The Judge held that the “purpose and mechanism” of the FA’s safeguarding regime closely aligned with the NHS’s statutory arrangement for suspension of doctors as mentioned in Gregg i.e. that it was “designed to protect the public and to retain public confidence”.

Period 3 – second custody period – 30 December 2022 to 17 January 2023

The custody period was due to Mendy’s admitted breach of bail conditions and, for the same reasons as in Period 1, this impediment was held to be avoidable. Therefore, Mendy was not “ready, willing and able” to work and MCFC were entitled to withhold Mendy’s wages.

Period 4 – second bail period – 18 January 2023 to 30 June 2023

The Judge held that the impediment was the bail conditions and that, as in Period 2, nothing expressly stated that the conditions were due to his previous breaches of bail conditions. Therefore, Mendy was entitled to recover his wages for this period.