Workers have less employment rights than employees (see our Questcover news article for guidance on these rights here) - and now there is a recent Employment Appeal Tribunal (EAT) decision on whether workers can get full pay whilst suspended from work.
Zero hours contracts
In the case of Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust, Mr Agbeze (A) was on a zero-hours contract and under the terms of this contract there was no obligation on the Employer to provide work and no obligation on (A) to accept any work offered to him.
An allegation over misconduct arose and (A) was suspended without pay pending an investigation of the matter. However (A) proceeded to file a claim for unlawful deduction of wages alleging that there was an implied term under the agreement that as he provided services to the Employer, he should be paid an average wage during any period of suspension where the Employer had work available for him to undertake during this period.
The Employment Tribunal dismissed (A)’s claim and he appealed to (EAT) seeking to rely on various case law authorities. The EAT case of Rice Shack Ltd v Obi, where the obligation to pay wages during a period of suspension was conceded by the Employer, thus in that case the EAT had not needed to decide if the Employer’s concession was legally correct thus the case did not assist (A) on his appeal.
Employment tribunal decision
The EAT considered the terms of the agreement namely that (A) would only be paid for duties he carried out whilst providing services. The agreement made reference that there was no obligation on the Employer to provide work, and no obligation on (A) to accept any work offered to him. Although there was no express provision in the agreement for unpaid suspension that was not significant in light of the other wording in the agreement and thus (A)’s appeal was dismissed.
Although the outcome of the above case is helpful to the Employer, it is always good practice to include express provision in any agreement or contract of employment over suspension and suspension pay to minimise the risks of uncertainty and potential litigation as employees are more than likely to be suspended on full pay as suspension is not in itself evidence of guilt.
Please note that this article is for information purposes only and should not be relied upon as being authoritative on the matter however further guidance on the matter can be provided by contacting our HR/legal advice-line on 01455 852028.
