Q. We have an employee who has been arrested and charged as it is alleged he has stolen large amounts of money from our company. The employee is not in custody and we do not want him to come into work so we want to suspend him. His contract of employment allows us to suspend him with pay. However, as the allegations are so serious we want to withhold his pay during the period of suspension. If after we have investigated there is no case to answer, we would then pay him full backdated pay. Can we do this?
A. When allegations are serious employers often suspend employees during a period of investigation. If the contract of employment only allows suspension with pay you should not withhold pay during the period of suspension. Where there is no contractual right to withhold pay during suspension it is only in very rare circumstances (e.g. if the employee was remanded in custody and it was therefore impossible for them to work) that an employer could potentially suspend the employee without pay.
As your employee has not been remanded in custody and is ready, willing and able to work despite you not wanting him to attend the workplace, he is entitled to be paid during his suspension. If you did withhold your employee's pay when his contract of employment entitles him to pay whilst suspended, he could bring a claim against your company for unlawful deductions of pay in the Employment Tribunal and seek to recover the pay from your company.
Employment law is complex so it is always advisable to take legal advice to clarify your position. Some law firms such as ourselves offer free employment contract health checks that would pick up issues such as you are now faced with. Getting your contracts checked might enable you to avoid similar problems in the future.