Pay During Medical Suspension

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What Is Medical Suspension?

Medical Suspension means that your employment contract is continuing, however you cannot carry out the job you were doing before the suspension. You are suspended on medical grounds if you do no work at all, or do a different job to your usual role. This page provides information on your legal right to medical suspension pay and how to enforce your rights if your employer refuses to pay it.

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Only those classified as employees are entitled to medical suspension pay. ACAS defines medical suspension as follows;

“Certain health and safety regulations require employees to be suspended from their normal work on medical grounds, when their health would be endangered if they continued to be exposed to a substance specified in the regulations. These provisions cover exposure to ionising radiation, lead and some other hazards.

Employees suspended for this reason are entitled to medical suspension pay if, before the suspension begins, they have one month’s continuous employment with the employer and if they are fit for work (provided they have not unreasonably refused suitable alternative work offered by the employer). Employers who make medical suspension payments provided for in an employee’s contract of employment can offset them against this statutory liability.”

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Medical Suspension Pay

Medical suspension pay gives you financial protection if you are capable of working but cannot do so because of risks to your health. It is NOT sick pay. Under Section 64 of the Employment Rights Act 1996 , you are entitled to be paid for up to 26 weeks at the statutory rate for a week’s pay.

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The Medical Grounds

You can only claim medical suspension pay on the following grounds [Section 64(2) ERA 1996];

• Your employer is required to suspend you by law
• Your employer is advised to suspend you by a provision in a Code of Practice under section 16 of the Health and Safety at Work (etc) Act 1974

In both cases the relevant provision must be listed in section 64(3) ERA 1996 which says that a suspension under any of the following laws will be on medical grounds;

• Control of Lead at Work Regulations 2002 (replaces the obsolete regulation in ERA 1996)
• Control of Substances Hazardous to Health Regulations 2002(replaces the obsolete regulation in ERA 1996)
• Ionising Radiations Regulations 1999

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Closing Down the Workplace

Your Employer can be required to close down the workplace to protect the health and safety of employees and workers under the following regulations;

• Control of Lead at Work Regulations 2002 (SI 2002/2676);
• Ionising Radiations Regulations 1985 (SI 1985/1333);
• Control of Substances Hazardous to Health Regulations 2002 (SI 2002/2677).
• Any other applicable regulations specified by the Secretary of State – S64 (4) of the Employment Rights Act 1996

In such a situation, you would be entitled to your normal pay during the period of suspension. To qualify for a medical suspension payment you must have been employed for a month or more. The period of continuous employment is the time between the first day of employment and the day before the day for which the medical suspension payment is claimed.

You must continue to be employed by your employer. You should not have been provided with work, or should not have worked on the type of work you normally did before the suspension.

You will not be eligible for medical suspension payments if you;

• Can’t work because you are physically or mentally ill.
• Have refused a reasonable offer of suitable alternative work.
• Have not complied with reasonable requirements imposed in order to ensure that your services are available. [Section 65(4) ERA 1996]

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Exclusions

The following are excluded from the right to medical suspension pay even if they are employees;

• Those employed under a ‘contract of employment in police service or persons engaged in such employment’ [Section 200(1) &(2) ERA 1996]
• Share fishermen and women [Sections 199(2), (7) & (8) ERA 1996]
• Members of the armed forces [Section 192 & Schedule 2, Paragraph 16 ERA 1996]
• Employees working overseas [Serco v Lawson 2006]

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What to Do if Your Employer Refuses to Pay You

You can start a claim in the Employment Tribunal (ET) if your Employer does not pay you medical suspension pay. There are two ways to sue in the ET as follows:

Medical Suspension Pay Statutory Scheme

Make your claim under section 70(1) ERA 1996. This is the statutory scheme governing medical suspension pay. You must bring your claim within 3 months starting with the first day of the period of suspension you are claiming for. If you win your claim, the ET will order your Employer to pay you what is due. There is no statutory cap on the compensation.

Unauthorised Deduction of Wages Claim

Make an unauthorised deduction of wages claim because the definition of wages includes medical suspension pay. The time limit is three months from the date of the pay in which you expecting the medical suspension payment to be made. [see Unauthorised deductions from your wages, How to write a grievance about unauthorised deductions from your wages]

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Best of the Web

GOV.UK – Suspensions from work for medical reasons

Worksmart – I have been suspended from work on medical grounds. What are my rights?

ACAS – Suspension