Employer’s question: sick pay during suspension

12 Aug 2021

Question: We have an employee who has been suspended pending a disciplinary hearing. They have now been signed off sick, delaying the hearing. Can we switch them to SSP?
Answer: The first thing to check is the wording of the employment contract. It is probably unlikely that the contract itself will cover this particular scenario, but that should still be checked.
Assuming that the employment contract is silent on the point, the next thing to check is the wording of the suspension letter given to the employee. If the letter states that they will be paid “full salary” while they are suspended, which can be fairly common wording, then it does present a potential issue if you are now looking to pay anything less than full pay. In that scenario, it becomes a question of what their actual status is. Are they absent from work because they are suspended? Or are they absent because they are sick? You have placed them on suspension, which has not yet ended, so it will be difficult to argue that the suspension terms do not apply.
If the wording of your suspension letter is unhelpful, you could potentially deal with the issue by lifting the suspension. It would then be clear that any continued absence from work would be classed as sickness absence and would therefore be paid at normal sick pay rates, and if there is no company enhanced sick pay entitlement, you could pay SSP. However you would need to exercise this option with some caution. If you lift the suspension, it implies that suspension is no longer necessary. Therefore if the employee presented themselves as fit to work again, there may be difficulties in suspending them again for a second time. Action of that kind may also start to imply that the outcome of the disciplinary hearing has been pre-determined.
The issue can be avoided entirely if different wording is used when drafting the suspension letter. If the employee is told that they will be “paid as normal” during suspension, or words to that effect, rather than give an absolute commitment to “full pay”, then that should allow flexibility to adjust pay depending on the circumstances and  prevent this particular headache from arising.
If you have similar issues in your business and would like further advice, please contact Will Walsh by email at Will.Walsh@dmhstallard.com or by phone on 01293 558540.

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