Suspension from work
Full pay or no pay?
Suspension from work is a draconian measure and should only be used as a last resort, but there are times when an employer has little, if any, option other than to suspend. In fact, failure to suspend an employee can leave an employer with a dilemma, particularly if they are considering a dismissal for gross misconduct. If the offence is so serious that it justifies summary dismissal and the employee continues to work up to the disciplinary hearing, it sheds doubt on the seriousness of the offence in the first place.
Suspension in itself is not a disciplinary sanction, and employers should make that abundantly clear when suspending someone.
Pay or not?
Generally, suspension is set out in the disciplinary policy and is usually paid, unless there is a contractual right to suspend without pay - which is rare. It stands to reason that if an employer maintains it is not a sanction, then it should be paid.
If it is not paid an employer may find that an employee resigns and claims constructive unfair dismissal. It may be the case that they would be dismissed in any event, following an investigation, but it still leaves the employee free to make a breach of contract claim too.
In most instances, when an allegation is made which is sufficiently serious and the consequences will likely be dismissal, suspension is the preferred option. Sometimes, during an investigation process, evidence will come to light which escalates an allegation of misconduct and suspension might then be an appropriate step to take.
Suspension for how long?
How long is a piece of string? In employment tribunals it is not uncommon for employers to lose a case because the suspended employee has been away from the workplace far too long. Suspension should only be as long as is reasonably necessary. Notwithstanding an employee is suspended on full pay, it does not give the employer the right to suspend indefinitely. So when an employee is suspended any disciplinary investigation should be undertaken swiftly.
What if the employee goes sick whilst suspended?
It often happens. An employee is suspended and subsequently invited to a disciplinary meeting, but in the intervening period they go sick with stress and anxiety. Should the employer continue to provide full pay or move to contractual sick pay or SSP?
As I stated earlier employers should have a clause which deals with suspension and invariably it will state that the employee will receive full pay whilst suspended. This is because the employer has an obligation under the employment contract to provide work and the employee is ‘ready and willing’ to undertake the work.
However, if the employee is no longer ready and willing due to their sickness there may have a case for saying that tStatutory Sick Pay should only be paid for as long as that period of sickness lasts (unless they are contractually entitled to full pay during sickness absence).
However, technically the employer would be in breach of contract as the employee is still suspended and the suspension clause has kicked in. Of course, it may say that when staff go sick the suspension clause can be lifted for as long as the sickness lasts and then suspension kicks back in when the employee is fit again, thereby avoiding the need to give full pay and not breach the contract.
However, in my opinion, this would be a risky approach but it is not beyond the realms of possibility, although a tribunal may consider that the lifting and then re-imposition of the suspension undermines the severity of the issue in a gross misconduct case.
The best approach for an employer would be to continue to pay full pay until the suspension is lifted which will be when the employee has had the benefit of seeing through the disciplinary process. If this means paying a couple of weeks extra due to a rescheduled meeting it may be better to grin and bear it. If the sickness becomes long term the employer always has the option of holding the disciplinary meeting in the employee’s absence, which if done correctly shouldn’t pose any problems.
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