In sickness and in health… are you still suspended on full pay?

Case details – Ms Simmonds v Croydon London Borough Council

Ms Simmonds, the claimant, worked in a senior capacity role for the council. She resigned in September 2022 and still has another 11-day case pending with the same tribunal. She was suspended in February 2021 and the council received her first sick note in July 2021. Her employer reduced her pay in November 2021 until the following March.

Tribunal decision

The tribunal looked first and foremost to the relevant contractual provisions for guidance.

• Sickness policy – four months’ full pay and four months’ half pay. No mention of payment if sick during a period of suspension. 
• Disciplinary procedure and terms for chief officers – notes that employees “may be suspended on normal pay”. Furthermore, suspension may involve some or all of the employee’s duties. Ms Simmonds was informed on her suspension that she would need to remain available during normal working hours to answer any work-related queries or to attend meetings. 

Taking these policies into consideration, the tribunal ruled that there was a clear contractual term under the disciplinary procedure, which was incorporated into her contract, that Ms Simmonds receives her full pay while suspended. Therefore, she suffered an unlawful deduction of wages during the period from November 2021 until March 2022 when her pay was reduced to sick pay (which was below her full pay). In their mind, and in the absence of a contractual term to the contrary, the terms of suspension under the disciplinary procedure ‘trumped’ those of the sickness policy.

Flawed or favourable decision?

• As the tribunal pointed out, the experience of long suspensions often does impact an employee’s health. To rule that the sickness policy overrides the full pay provisions of the disciplinary policy would be to prejudice these employees further. 
• To the contrary, that does leave room for unscrupulous employees to ‘play the system’ – ‘twas ever thus! A suspended employee on full pay could use their sickness as an excuse to refuse to participate in any disciplinary meeting or process and so postpone any potential detrimental decision whilst enjoying full pay.
• Not surprisingly, the council are not happy and warn it sets a worrying precedent for the payment of senior staff who are sick while suspended.

Learning points

• Longer suspensions should be avoided where possible – Shorter periods of absence are likely to be less stressful for the suspended employee and so reduce the impact of the stress and so the chances of being signed off for medical reasons. Of course, this must be balanced against the need for a full and thorough investigation to ensure any potential actions are fair and not vulnerable to challenge in a tribunal. We would also advise regularly reviewing suspensions; are they still necessary, and could the employee return to work? It is not good practice for an employee to be left in suspension without a review of action for any period of time.
• Ensure contractual clarity – The tribunal noted that the contractual provisions were silent as to sickness during suspension. The only nod to the state of the employee on suspension was the proviso that they be available to be contacted for work-related queries. In both cases that Ms Simmonds’ legal team highlighted, the tribunal judges would not accept any implied reduced payment term where the suspension clause required employees to be ready and willing to work. If you want to exercise the right to reduce the pay of a sick suspended employee, then it must be clear and expressly documented in the contractual provisions. For organisations within the local government sector, be mindful of JNC Handbooks and the specific provisions for the employee in question. The judge noted some correspondence as to whether Ms Simmonds’ suspension came under the JNC for chief executives or for chief officers. Whilst it did not appear to be material in this case, the importance of identifying the correct procedure for the relevant employee is important. 
• Custom and practice – local authority employers, such as Ms Simmons’ employer, will often fall foul of the custom and practice argument. One team may have one way of treating suspended employees. This may differ from another team and there may not always be oversight of the decisions and inconsistencies. Alternatively, a particular practice may be followed, despite contrary express contractual terms, because that ‘is always the way it’s done’. This muddies the water and does nothing to help the contractual clarity that is needed as noted in the clause above. Be aware of these anomalies where they exist and seek to return practice back to express contractual terms. 
• Beware the discrimination angle – Clarity of contractual provision is important but do be aware of any potential indirect discrimination aspect of any such provision which reduces the pay of a sick employee who is suspended. If their sickness is a disability as defined under the Equality Act 2010, then such a clause could be indirect discrimination as it could be a provision, criterion or practice which adversely affects people with a disability.
• Tribunals do not like employers reducing pay! – Tribunals rarely look kindly on employers who chose to reduce pay without express contractual provision. You may remember a case last year when an employer reduced the contractual sick pay of an employee to statutory sick pay because they believed the sickness was not genuine (Singh v Metroline West Limited 2022 EAT). The EAT found that the reduction in pay was a fundamental breach of contract. If you choose to amend your suspension policy, do so with care and be mindful of defending it to a tribunal judge!

If you would like any assistance in amending your contractual provision or seeking to deal with issues where suspension and sickness collide, please do contact Sarah Harnett or Matthew Gregson. Alternatively, we offer a range of bespoke training on how to manage an effective investigation within your organisation. The training can be written to cover specific issues you feel would be beneficial and can be half day/full day or shorter.

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