Both claimants are employed by the respondent as paint specialists. The main issue was whether they were medically suspended from work within the meaning of Art.96 of the Employment Rights (NI) Order 1996.

Both claimants had attended routine health examinations with the respondent’s Occupational Health Nurse.  They were certified fit for work, apart from working at heights due to concerns about blood pressure readings. Both were told by management not to return until they had been deemed suitable to work and both were later certified as fit to work by their GPs.

The tribunal concluded that the circumstances of the case fell outside the scope of Art.96.  It held that Art.96 refers to a situation in which the employee is caused to be sent home from his workplace due to an inherently dangerous situation brought about by the employer.

However, the respondent was held to have unlawfully deducted 3.5 days' pay from the first claimant for the unpaid half day and three unpaid ‘waiting days’ as provided for by the respondent’s sickness policy. The second claimant had applied for and was granted permission to use his contractual holiday entitlement to cover his absence from work. In the event, however, there was no deduction from his wages, and his case was dismissed.

Practical Lessons

Art.96 entitles employees to remuneration if they are suspended on medical grounds. The tribunal was clear that the provision refers to a narrow band of situations for example: ‘the presence of a hazardous substance’ on work premises.

However, suspension as per Art.96 is likely to be viewed as a punishment and the tribunal recognised that the claimants reasonably felt stigmatised about their treatment.  The situation arose from very poor communication from the respondent to the claimants which could quite easily have been avoided.

The tribunal suggested at the end of the judgment that the respondent may wish to remedy the second claimant’s financial situation as a ‘gesture of good will’. Considering the respondent allowed him to use his contractual holiday entitlement instead of properly paying him, this would appear to be a reasonable solution.
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