2nd August, 2022
What is medical suspension?
It is not uncommon for an employee accused of an act of gross misconduct to be suspended on full pay whilst an investigation takes place into the allegations. However, suspension on medical grounds, otherwise known as medical suspension, is lesser known as it only applies to a limited number of industries and in limited circumstances but it is important for employers to be aware of as it can be appropriate to use in the right circumstances. We shed light on medical suspension below.
What is medical suspension?
Medical suspension describes the period in which an employee is suspended from work whilst the employer investigates into an employee’s health condition. The employee is still employed but is no longer required to perform work or attend the workplace like suspension on disciplinary grounds.
Medical suspension also has a specific statutory definition (“statutory medical suspension”), where an employee is suspended in consequence of a requirement imposed by one of the following:
- Regulation 16 of the Control of Lead at Work Regulations 1980;
- Regulation 24 of the Ionising Radiations Regulations 1999; or
- Regulation 11 of the Control of Substances Hazardous to Health Regulations 1998
Suspension can also be made for maternity reasons, for example, if they are pregnant and work in a laboratory that is exposed to radiation.
In other words, the regulations where medical suspension can apply refer to danger of exposure to harmful chemicals at work, radioactive material, lead or other hazardous materials. In some cases regulations in the Food radioactive material, lead or other hazardous materials.
When should medical suspension be considered?
Suspension must be on medical grounds, being either a consequence of a requirement imposed by law, a recommendation in a code of practice or approved under the Health and Safety at Work Act.
Employers have a general duty under the Health and Safety at Work Act to ensure, so far as reasonably practical, the health, safety and welfare of employees. Therefore, suspension on medical grounds can be an appropriate step if there is a health and safety risk to the employee concerned or to wider staff members. Suspending an employee on medical reasons is extremely fact-specific so we highly recommend that employers carry out a risk assessment and gain legal advice before taking such action.
What is an employee’s pay when suspended?
Employees who have been suspended on statutory medical suspension (see definition above) are entitled to receive up to 26 weeks’ pay provided the employee has at least one month’s continuous service from the start date of their suspension. Statutory medical suspension is paid at the rate of a weeks’ pay subject to the statutory weekly cap which currently stands at £571.
Employees suspended on medical grounds outside of the statutory definition should receive full pay whilst the employer investigates into their health condition. The situation is different once the employer is fully aware of the employee’s health condition and they are deemed unfit to work. In that case, suspension would end, and the employee would be on sick leave and entitled to statutory or company sick pay as usual.
How long should an employee be suspended for?
Employees should keep the length of suspension to a minimum to allow the employer to investigate into the employee’s health condition. Employers may also decide to extend the suspension period to ensure they have the correct support in place and implement any reasonable adjustments if it appears the employee’s health condition would be classified as a disability under the Equality Act 2010.
What additional steps should be taken before suspension for maternity reasons?
Additional rules apply to before an employer can suspend an employee for maternity reasons which includes:
- An employee who could become pregnant
- Are pregnant
- Gave birth less than 6 months ago or are breastfeeding
In such circumstances, the employer must try the following steps before proceeding to medical suspension:
- Reasonable steps should be taken to remove, reduce or control any risk to the employee or their baby. This may include steps such as preventing exposure or providing protective equipment.
- Temporarily adjusting working conditions or hours of work.
- Offering suitable alternative work.
- Suspension on full pay for as long as the employee, or their baby, is in danger.
What are the risks of medical suspension?
Suspension should not be indefinite as a lengthy suspension period may be considered a breach of contract which could leave the employer at risk of constructive unfair dismissal claims, unlawful deductions from wages claims and/or breach of contract. If possible, employers should specify the suspension period, or in the alternative, keep the employee regularly updated.
Employees may also raise a grievance if they are not satisfied with the medical suspension and in some cases could give rise to maternity, pregnancy and /or sex discrimination and /or claims for disability discrimination.
If you require legal advice relating to medical suspension please get in touch by completing the form below.
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