Mr Burns was arrested and charged with 13 criminal offences. He was remanded in custody for six months pending trial. During that period, Santander did not pay him. Mr Burns claimed unlawful deduction from wages. The central issue was: is an employee who is remanded in custody pending the outcome of criminal charges entitled to be paid his contractual pay? The general rule is that if a worker is ready and willing to perform their contract, but is unable to do so by reason of sickness or injury, or some other unavoidable impediment, then depending on the terms of the contract, they may be able to claim their pay. Mr Burns argued that he had been ready and willing to perform his contract but had been prevented from doing so because of the unavoidable impediment of being remanded in custody. So, a further question arose: if someone is remanded in custody, is that unavoidable or avoidable?
The tribunal held that as Mr Burns had not been able to work because his own conduct had led to the court remanding him in custody pending trial, there was no unlawful deduction from wages. The EAT agreed. Mr Burns’ remand in custody was an avoidable impediment. Therefore, it was implied that he was not entitled to his wages for the period of remand. Although the decision to remand him in custody was the court’s and not Mr Burns’, the question was whether, by his own voluntary actions, he had contributed to that state of affairs. The tribunal’s analysis on that issue could not be faulted. Mr Burns had conducted himself in such a way that, according to the criminal court, he should be deprived of his freedom and therefore deprived of his right to attend work.
Case: Burns v Santander UK plc [2011] IRLR 639
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