The EAT has held, in the case of Burns v Santander UK plc, that an employee who is remanded in custody for six months while awaiting trial was not entitled to claim wages for that period.

Mr Burns was arrested and charged with various criminal offences.  He remained in custody for six months until his trial.  Santander wrote to him to say that he would not be paid while he was in custody.  At his trial, he was convicted of two of the offences and given a suspended prison sentence, combined with an order for unpaid work and a supervision order.  Once he was released from custody, Santander suspended him on full pay until he was dismissed following a disciplinary hearing.  He brought an action for an unlawful deduction from wages. He argued that he was entitled to be paid during his period in custody as he had been "unavoidably" prevented from working.

The EAT held that, although while in custody he was ready and willing to work, his remand in custody was an "avoidable impediment" to his actually working and therefore he was not entitled to be paid.  Although the decision to remand him in custody had not been his but that of the criminal courts, he had conducted himself in such a way that the judge in the criminal court considered he should be deprived of his freedom and therefore his right to work.

Impact on employers

  • The question of whether an employee is entitled to be paid when they are absent is not always easy to answer.
  • The contract of employment or employer's absence policy or practice should be the first port of call and will usually set out terms in relation to payment when an employee is absent because of sickness, injury and other types of absence.
  • When the contract is silent in relation to a particular type of absence, the courts must consider what term should be implied in the circumstances of the case.  In the past, the Court of Appeal has refused to imply a term that an employer would pay wages when an employee was absent because of sickness.
  • In this case, the court reached a similar conclusion regarding what they considered to be avoidable absence.