In a determination given on 23 March, but just released, in the case Burns v Santander UK Plc, the Employment Appeal Tribunal (EAT) decided that, if an employee is charged with criminal offences and remanded in custody, there is an avoidable impediment depriving the employee of the right to wages during the period of remand.

Mr Burns was arrested in February 2009 and charged with a number of serious criminal offences. He was in custody right up until August 2009 when he was found guilty of two of the offences. He was provided a non-custodial sentence which included his period on remand. His employer did not pay him while he was in custody but, on his discharge, he was paid in full while on suspension and up to his subsequent dismissal. Mr Burns complained to the Employment Tribunal of unfair dismissal and unlawful deductions from wages and holiday pay. The appeal linked solely to the Employment Tribunal’s judgment that the non-payment of earnings during the period of remand was not an unlawful deduction of salary.

The established principle is that a worker continues to be eligible to earnings if he is ready and willing to work but cannot do so because of health problems, injury or other unavoidable impediment. On behalf of Mr Burns, it was argued that his absence from work was “unavoidable” because he had been detained by the court. The EAT acknowledged this in principle but held that the question for the Tribunal was whether, by his own voluntary actions, Mr Burns contributed to the scenario in whole or in part.

The EAT verified the Tribunal’s thinking that a worker who is unable to work under his deal due to an avoidable impediment, even though he may be prepared to work, is not eligible to wages. Even though he had not been found guilty at the time his employer stopped payment, he had conducted himself in such a method that he should be deprived of his liberty, as subsequently confirmed by the guilty finding of the court.

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