Benjamin Mendy has lodged a claim in the employment tribunal for unpaid wages by his former club, Manchester City. Nick de Marco KC, Mendy’s lawyer, has indicated that the player is claiming for all wages not paid to him during the period between September 2021, when he was charged with serious criminal offences and suspended by the club; and June 2023, when his contract with Manchester City expired.
Mendy was acquitted of all criminal charges in July 2023. Head of Employment Joseph Lappin spoke to talkSPORT about the subsequent likelihood of Mendy’s claim against Manchester City succeeding and discusses this further here.
Why the Employment Tribunal?
Mendy’s employment contract with Manchester City contained an arbitration clause. Normally, disputes between football players and clubs are resolved through Premier League arbitration which, unlike the employment tribunal, is held in private. However, Mendy is entitled to choose to bring his statutory employment claim for unlawful deduction from wages in the Employment Tribunal instead of arbitration – this is what he has decided to do.
Why make this choice? Mendy might hope that the publicity resulting from a high-profile public employment tribunal claim will put pressure on Manchester City to settle his claims quickly. He might also reasonably believe that Manchester City would rather do without having to spend time, effort and money defending his claim in the Manchester Employment Tribunal.
There is also a risk in arbitration that Mendy would need to pay Manchester City’s costs if his claim was unsuccessful. The ‘loser’ in arbitration will typically pay all or at least some of the winner’s costs. In the Employment Tribunal, each side normally pays their own costs regardless of who ‘wins’.
Who is likely to win?
Manchester City stopped paying Mendy as soon as he was charged and remanded in custody. Given that Mendy was found not guilty in respect of all charges, many will say that he ought not to have been deprived of an income.
I think this case will come down to whether the wages for the relevant period were properly payable to Mendy. It goes without saying that there cannot be a deduction unless the wages claimed are properly payable in the first place.
Manchester City will say that Mendy has no legal entitlement to any wages for the period between September 2021 and June 2023 because he was unavailable to train or play during for the club during this time.
Between September 2021 and January 2022, Mendy was remanded in custody pending his criminal trial. When he was released on bail in January 2022, his bail conditions stipulated he could not enter Greater Manchester where the club’s training ground and stadium is based. In short, Manchester City will say Mendy was unavailable for work from the time of his arrest until his contract expired.
The Employment Tribunal will need to determine whether the club was permitted to stop paying him from September 2021. One can never predict the outcome of any tribunal hearing with certainty but, based on my understanding of the facts of this case, my view is that the club was entitled to stop paying Mendy. The fact that Mendy has subsequently been found not guilty of the charges made against him is, as far as his unlawful deduction from wages claim is concerned, beside the point. During the relevant period of September 2021 to June 2023, Mendy was – albeit involuntarily – prevented from fulfilling his duties to his employer.
What happens if Mendy’s claim succeeds?
If Mendy does ‘win’ his claim, he will seek a declaration that his wages were deducted unlawfully and full repayment of the deducted sums. Potentially, Mendy might also seek compensation for any financial loss he has suffered as a result of the deduction. Reports state that Mendy owes HMRC circa £800,000 in unpaid tax. He might argue that any penalties he has incurred arise from the club’s failure to pay his wages between September 2021 and June 2023.
