Calculating Pay During Suspension

Posted in : Seamus Says - Employment Law Discussion on 2 August 2019
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Scott: This question is about calculating pay during suspension.

Could I seek a view on paying staff regular overtime whilst on precautionary suspension?

Scott: So presumably there's been some kind of disciplinary reference and you've put the person off work whilst you investigate. So what's your views there?

Seamus: So, well, we discussed about this earlier, and there was a basic principle is that there's no way you guarantee that you're going to get this. However, where I would be coming from on this is, you know, a suspension is precautionary. It's supposed to be short term on . . . you know, it's supposed to allow you the time to find out information as to whether there should be a disciplinary or not.

If someone is getting regular overtime and they are on suspension, which is precautionary, you know, there's an issue there if you're not going to pay them that, once they're off, because at the end of the day, you know, they could come back to work and there's no action taken. And then you've disciplined them because of . . . you've taken money off them because the investigation needed to be done and they have to put on suspension, which then leads to issues of, you know, if there was a claim to be taken later on, you know, did you just pre-empt the outcome if they are dismissed or, you know, issues like that?

Just sort of if I was to go back to the Labour Relations Agency Disciplinary Code of Practice, and it does say that the employee shouldn't be at any detriment through a precautionary suspension. Now, a lot of those payments are not statutory payments that you would have an automatic legal entitlement to.

The risk would be that if you didn't pay the employee those, that it may feel punitive and that the employee then may decide, "Well, this is evidence that the employer is going to dismiss or wants to dismiss or is tactically using this to punish me and send me messages that they don't want me." And you could end up then, potentially, with a constructive dismissal claim perhaps that if this is over a longer period of time. And I know like Hannah is very right. there are precautionary suspension and short turnaround in terms of that. Sometimes, as you know, these things can take longer in terms of investigation.

Scott: Particularly in the public sector you find that, you know, there's almost a decision paralysis when it comes to senior people. And you could be out for months sometimes, which in itself is a breach of contract. But in this situation here, there's no European directive or guideline or treaty or anything that says you have to be paid full pay during suspension. It's one of those ones that is covered by the code, and I suppose it's implied in the contract that you will not do anything that would impugn the contract as an employer pending this period, because you're still innocent till proven guilty.

Seamus: My advice to any client on this would be, yes, short turnaround and don't put the employee at any detriment as a result of the suspension, because if you end up further down the line, it could be used against you.

Scott: Now, that's totally different from somebody who's suspended as a disciplinary penalty with no pay, which is fine in some contracts as an alternative to dismissal. It certainly happens in a lot of the manual contracts I used to look at in the past when I was at the LRA. So they are totally different.


This article is correct at 02/08/2019

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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