This case concerned an appeal by Kent County Council against the Employment Tribunal which found that Kent was liable to pay to the Claimant arrears of salary for a period from 8 January to 20 May 2011, during which period, although he was their employee, he had had been suspended and they had not paid him.

The Appellant authority suspended the Claimant after receiving information from the police that he had been involved in dishonesty which had serious financial and reputational consequences for them. There was no contractual right to suspend without pay. The Claimant was not in custody but was available for work. The council had initially suspended the employee on full pay but changed its mind when it sent the claimant a letter with this wording: “Given the serious nature and magnitude of the allegations, I am withholding your pay with effect from Thursday 6 January 2011. Should the investigation or any subsequent disciplinary hearing conclude that there is no case to answer, then you will receive the backdated pay.” They held a disciplinary hearing some 4 months later, which the claimant did not attend, and summarily dismissed the claimant. No back pay was paid.

The Court concluded that this appeal had no reasonable prospect of success. Upholding the tribunal's decision that the money had been unlawfully withheld, the EAT found that, "It was not reasonably arguable that the Claimant‟s salary was not properly payable within s13(3) of 77 the Employment Rights Act 1996, in the absence of any contractual right to suspend without pay..." The employee was not in custody, was available for work and there was no valid argument that "by his conduct, which was alleged but not proved, had put himself in a position in which he was unable to work."

However, the Court held that Kent are not without remedy. Although Kent have not yet started proceedings against the Claimant and are waiting to see what happens at the trial, but if they then do start proceedings in the light of a conviction, it would be difficult to see how any obligation in relation to pay could be enforced without it having to be set off against any sum found due to Kent from the Claimant.

Download the full EAT decision here.