Ian Smith tackles a tricky employment law conundrum
Sometimes in employment law an apparently simple employment question fails to give rise to an equally simple legal answer. One such question has arisen again recently. If an employee is charged with an offence which means they cannot attend work (usually because of a remand in custody, but here for a different reason) does the employer have to continue paying wages? The optimum position here is if the contract contains an express clause permitting (or not permitting) a suspension without pay in the relevant circumstances. However, in the lack of that the position becomes more complex. The common law position is that the consideration for wages is not actual work, but readiness and willingness to work. This means that there may be a continuing entitlement to wages in the case of sickness, injury or other unavoidable impediment. It is this last element that causes the problem here—is being charged with an offence “unavoidable”?
Ekwelem v Excel Passenger Service Ltd
The point arose directly on the facts of Ekwelem v Excel Passenger Service Ltd
