Facing suspension from work can be an incredibly stressful and uncertain time for employees, particularly when they are subject to an ongoing investigation into alleged misconduct. Therefore, it is not uncommon for the employee to take sick leave during a period of suspension. This can create a difficult situation for employers, who must strike a balance between their duty of care to the employee and the need for a fair and thorough investigation to be conducted without undue delay.

Whilst this can be inconvenient and frustrating for employers, employees have the right to take sick leave even when they are suspended. Whilst suspended, an employee is still subject to the terms and conditions set out in their employment contract. As such, the employee's benefits and entitlements including annual leave, sick leave and bonuses will normally remain unaffected by the suspension. Therefore, each case should be assessed on a case by case basis, taking into account the employer's existing sickness and suspension procedures, as well as the specific terms of the employee’s employment contract.

Employer's should exercise particular caution with regards to paying employees who are out on sick leave during a period of suspension from work. In any event, depending in the contractual wording, employees may be entitled to their full salary as specified in their contract of employment when they are suspended. Even where the employee’s contract of employment and/or the employer's workplace sick pay policy would otherwise entitle the employee to a reduced salary by virtue of statutory sick pay ('SSP’), if the employee's suspension was effective prior to their sick leave then reducing their salary could give rise to a claim against the employer for unlawful deduction from wages.

Overall, while an employee is suspended they are entitled to all benefits and pay as normal under their job contract, including their entitlement to sick leave. In order to mitigate legal risks, employers should be cautious about varying the pay and benefits which an employee receives when they are suspended and seek legal advice if they have any concerns.

Legal Island Training Resources for Your Staff

HR Toolkit | eLearning Course

Are you responsible for overseeing the implementation of training for all employees in your organisation?

Legal Island has created an HR Toolkit that aims to provide comprehensive training to assist HR professionals in supporting line managers and employees throughout the employee journey. The suite of courses will offer practical advice to assist you in updating your processes and procedures and help you understand your legal obligations.

Click here to view our HR toolkit.