When an employee goes off sick during a period of suspension, employers can be uncertain about their payment obligations. The interaction between suspension, contractual pay, and sick pay entitlement can create confusion, particularly during disciplinary investigations.
What Is Employee Suspension?
Suspension is typically used where an employer needs to investigate allegations of misconduct, concerns about workplace safety, or other serious issues. In most cases, suspension is intended to be a neutral act and should not be treated as a disciplinary sanction in itself. It is not reasonable in every case of misconduct and employers should only suspend an employee where it is necessary and reasonable to do so.
Unless an employment contract expressly provides otherwise, employees who are suspended are generally entitled to continue receiving their normal pay and benefits during the suspension period.
What happens if an Employee goes off sick during a period of Suspension?
The position becomes more complicated when a suspended employee reports sickness absence after they have been informed of a suspension.
The starting point is to consider the reason the employee is being paid during suspension. If the employee is entitled to full pay because they are suspended from work by the employer, in order for the employer to investigate a misconduct allegation, the employer may remain liable to continue paying normal salary during the suspension period, even if the employee also reports sickness. This is unless the contract (and the letter of suspension) specifically provide clarity that in the instance an employee is sick whilst on suspension, the sick pay provisions applicable to their employment prevail.
The answer as to what an employee should be paid will therefore depend on:
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The wording of the employment contract.
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Any applicable sickness absence policy.
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The terms of any suspension letter.
- Any relevant collective agreements.
Employers should therefore review the contractual documentation carefully before making decisions about pay.
What happens if a sick employee is subsequently suspended?
If an employee is already on a period of sickness absence and then the employer needs to place the employee on a period of suspension, there may be grounds for the employer to continue paying the employee as per the sickness policy. This is because the employee is already receiving sick pay and the period of suspension is a subsequent result of the sickness. Of course this will again depend on the wording of the employee’s contract and the company sickness absence policy.
Can I just pay a sick suspended employee SSP?
What you pay an employee when they are off sick will depend on the provisions of their contract. If they satisfy the eligibility criteria for Statutory Sick Pay (SSP) then this must be paid as a minimum.
If the employee is contractually entitled to enhanced pay (above SSP) for a period of time when off sick and this has not already been exhausted, then the employer must pay the contractual enhanced sick pay to the employee.
The wording of the sick pay policy and the contract will be key in making this determination.
Key risks for Employers
Employers should exercise caution before reducing an employee's pay simply because they have reported sickness during suspension.
Potential risks may include:
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Unlawful deduction from wages claims.
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Breach of contract claims.
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Constructive dismissal allegations where payment arrangements are handled improperly.
- Employee relations issues that can undermine a disciplinary process.
Any decision to alter pay arrangements should be supported by clear contractual provisions and applied consistently.
Practical tips for Employers
To minimise disputes, employers should:
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Ensure suspension policies clearly address pay entitlement.
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Review employment contracts and sick pay provisions regularly and ensure that provisions are in place detailing sick pay during any period of suspension.
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Confirm the terms of suspension in writing and confirm the pay entitlements of the employee during this period.
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Maintain accurate records of sickness notifications.
- Seek legal advice where contractual provisions are unclear.
Conclusion
Whether an employee should receive full suspension pay, Statutory Sick Pay, or contractual sick pay during a period of suspension will depend on the particular contractual arrangements and circumstances of the case. In many situations, employees suspended on full pay will remain entitled to their normal salary during suspension, even if they subsequently report sickness absence.
Employers should review the relevant contractual documentation carefully before making any changes to pay arrangements and seek specialist employment law advice where uncertainty exists.
If you require legal advice, contact our expert team for guidance.
