What is Medical Suspension? An Employer’s Guide

Medical suspension is not the same as sickness absence. Sickness absence is triggered by the employee or a medical practitioner, where it is deemed that the employee is too unwell to attend work. Their time away from work is intended to allow them sufficient time to recover from their absence to allow them to eventually be able to return to work.

Sickness absence can be short-term or long-term. The employee will be paid in accordance with the employer’s sick pay arrangements, either company sick pay or statutory sick pay if the employee is eligible.

Unlike sickness absence, medical suspension is triggered by the employer. It usually arises from concerns regarding the employee’s health and safety at work, which every employer has a legal duty to protect.

Here are some of the occasions where medical suspension may be used:

1.    Exposure to Dangerous Chemicals, Lead or Radiation

Medical suspension under these circumstances is very specific and usually occurs when an employee has been exposed to levels of hazardous substances and must cease work to ensure their health is protected. Employers should ensure they take the appropriate advice from health and safety experts both in respect of managing risks associated with working with hazardous substances and how to respond to any concerns arising from their use.

2.    Pregnancy-Related Risks

Employers have specific statutory duties when it comes to carrying out risk assessments for pregnant employees. Employers must carry out a risk assessment when an employee informs them they are pregnant, if they have given birth within the past 6 months, or if they are breastfeeding.

The employer must:

• Take reasonable steps to remove, reduce or control any risks to the employee and their baby – for example, by preventing exposure to the risk or providing protective equipment.
• Try to temporarily adjust the employee’s working conditions or working hours.
• Offer the employee suitable alternative work on their normal terms and conditions.

If the above arrangements cannot be made, only then can the employee be suspended. The suspension will be on full pay and last as long as the employee or their baby is in danger. (www.gov.uk)

Again, employers are advised to ensure that they take appropriate specialist H&S advice on carrying out risk assessments.

Yes, medical suspension from work is paid. A failure to pay an employee during a course of medical suspension will amount to a breach of contract and could expose the employer to the risk of claims arising out of that contractual breach, such as constructive dismissal, discrimination and unlawful wage deductions.

The employee should be paid their usual rate of pay (including bonuses) for any time they are suspended from work on medical grounds for a period of up to 26 weeks, as long as they have at least one month’s service.

Employers must ensure that medical suspension is based on genuine health and safety concerns and is not imposed unreasonably to cause the employee to suffer any detriment. To do so could leave the employer exposed to risks of discrimination or constructive dismissal claims.

The need to place an employee on suspension (whether for medical or disciplinary investigation purposes) should be continually reviewed to ensure it remains proportionate and should only be imposed for as long as necessary.

Employees should always be suspended in writing, setting out the reasons for their suspension from work and the likely duration of the period of suspension.

Employers should ensure that employees placed on suspension are kept up to date with company developments, including any job vacancies. Employees should not suffer any form of detriment during their suspension; they should continue to receive all contractual rights and entitlements, including bonus payments and the right to accrue annual leave.

There are circumstances where an employee may be suspended from work on medical grounds, but may not be entitled to pay during their suspension:

1.    They Are Not Available When Needed for Suitable Alternative Work

The employee is expected to be available to the employer during their normal hours of work. The employee may have another job, but they should not turn down work offered by their employer during the hours they would normally be expected to work in favour of working elsewhere. This is not reasonable.

2.    They Refuse Other Suitable Work from the Employer Without a Good Reason

It’s important that the employer takes the appropriate advice regarding what is likely to be deemed suitable work, but broadly speaking, if it is within the employee’s capabilities, it is safe for them to carry out, it doesn’t require them to travel beyond what is reasonable and is on the same rate of pay and hours of work, the employee should not unreasonably refuse to carry out the work offered.

If the employee does raise objections/concerns regarding the alternative work that is being offered, it is important the employer allows the employee the opportunity to raise their concerns and fully takes on board what those concerns are. After all, the employer’s definition of reasonable may not align with the employee’s.

3.    They Are an Independent Contractor

This means they are genuinely self-employed. Businesses have health and safety obligations to self-employed contractors as well as their employed staff, so it may be appropriate to ask a self-employed contractor to remain away from work due to medical reasons or identified risks, but they will not have any obligation to pay them.

Advice should always be sought before asking a self-employed contractor to remain away from work so that their status as a genuinely self-employed individual may be properly assessed.