employment law

Pay during Suspension

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Chelsea Duke, HR Business Partner

25 August 2023

The recent employment tribunal case of Simmonds v Croydon London Borough Council reminds employers to check the wording of their contracts, terms and conditions of employment, and disciplinary procedures in relation to suspension and entitlement to pay during suspension.  

Ms Simmonds was absent due to sickness during a lengthy period of suspension, and her pay was eventually reduced to half in accordance with the Council’s sick pay scheme.  However, the tribunal found that a term stating that suspension would be on full pay applied because there was no express provision that in the event of sickness during suspension, sick pay provisions would apply instead.  Therefore, the tribunal concluded that the Council was wrong to reduce Ms Simmonds’ pay to half and ordered the Council to pay Ms Simmonds the remaining net salary.

Although this decision was made in a first tier Employment Tribunal and is thus not legally binding on other Employment Tribunals, it is nevertheless a useful reminder for employers not only to check their terms regards pay during suspension, but also of the need to ensure firstly that suspension is only used when the circumstances justify it, and secondly that a period of suspension should not be allowed to become unduly protracted.

Suspension is occasionally necessary to ensure a fair investigation can take place, most often when an allegation or complaint has been made which may lead to disciplinary action being taken.  Employers may consider whether it is reasonable to suspend an employee in order to protect:

 

  • the investigation itself (e.g. to prevent evidence being tampered with or destroyed, witnesses being threatened or intimidated)
  • other employees or clients/customers (e.g. if there is alleged abuse, violence or bullying)
  • the organisation and its assets (for example, property or data)
  • the individual under investigation

Suspension is not in itself a disciplinary sanction, and does not indicate that the person has done anything wrong.  For this reason, suspended employees are usually entitled to continue receiving full pay and any contractual benefits during the period of suspension.  Employers should also be mindful of the need to consider the wellbeing of the suspended employee, as well as their right to confidentiality.

The ACAS Code of Practice on Disciplinary and Grievance Procedures confirms that any period of suspension should be as brief as possible and should be regularly reviewed to ensure it is still justifiable and reasonable in the circumstances.

Suspension should be a last resort.  Before deciding to suspend, the employer should consider whether alternative measures could be used to achieve the same result.  These may include temporary adjustments such as moving the employee to a different team or work area, asking them to work from home, changing management reporting relationships, removing certain duties or tasks from their role, or removing the employee’s access to certain systems or places.

In the light of the Simmonds case, employers should:

 

  • Review all documentation mentioning suspension (e.g. contracts of employment, terms and conditions, Disciplinary or Bullying and Harassment procedures etc.) to ensure that it is clear whether and how either annual leave or sickness absence affects pay during suspension
  • Ensure that any suspension is justifiable, regularly reviewed and kept as short as possible, and that regular communication with the employee is maintained throughout.

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