Can you pay suspended employees SSP?

Many employers assume that, if an employee is suspended on full pay pending an investigation, and is then signed off on sick leave, thereby preventing them from attending a disciplinary hearing, they can then simply switch to paying the employee (statutory) sick pay instead of the employee’s full salary.

Whilst this sounds logical, the legal position is more complex as employers are, usually, required to maintain the employee's full salary throughout the period of suspension, even if they are signed off sick during this time.

In the case of Wright v Weed Control Limited, Mr Wright was suspended for two weeks pending an investigation for misconduct and his contract of employment specified that he would be paid “full basic pay” during a period of suspension. After being suspended, Mr Wright was signed off sick, but his contract only entitled him to receive statutory sick pay (SSP) for periods of sickness absence. The Employer took the view that Mr Wright’s sickness absence had superseded the suspension and he was unable to participate in the disciplinary process, so reduced his pay from full pay to SSP.

Mr Wright successfully brought a claim in the Employment Tribunal (ET) for unlawful deduction of wages on the grounds that he had not been paid the correct amount during the period of suspension. When addressing this issue on appeal, the Employment Appeal Tribunal upheld the earlier decision of the ET. The employment contract required the employer to pay Mr Wright full pay during a period of suspension, irrespective of the fact that he had later been signed off as sick. The Employer’s argument that Mr Wright had to be ready and able to work to receive full pay during a period of suspension was rejected.

This case reminds employers that suspension is a neutral act, not an assumption of guilt. Therefore, when an employee is suspended under a contractual clause that entitles them to receive full pay, they are still regarded as being absent from work due to the suspension even if they are later signed off sick.

Even if sickness prevents the employee from attending a disciplinary meeting, suspension is still the primary cause of absence. In the absence of a specific clause in the employment contract allowing an employer to pay SSP if an employee is signed off sick during a period of suspension, full pay must be maintained or the employer risks a claim for unlawful deduction of wages.

If you have any questions about this case or suspending employees, please call us on 0113 207 0000.