Kent County Council v Knowles

An employee suspended pending investigation remains entitled to contractual salary unless the contract authorises suspension without pay. Arrest, charge or unproved allegations of serious misconduct do not, without more, establish that the employee was unwilling or unable to work through an avoidable impediment.

Under section 13(3) of the Employment Rights Act 1996, salary due under the contract is properly payable. An employee who remains ready and willing to resume work gives sufficient consideration for that salary during a paid suspension.

Kent County Council suspended its employee following police information alleging serious fraud. It initially suspended him on full pay, but then withheld salary until his summary dismissal. The employee was not remanded in custody and the alleged misconduct had not been proved.

An Employment Judge held that the withheld salary was recoverable as arrears. Kent appealed, relying on section 13(3) of the Employment Rights Act 1996, the employee's alleged inability to provide consideration, and a contractual suspension provision.

The central issue was whether the employer had an arguable right to withhold salary from an employee suspended pending investigation.

1. Appeal dismissed. The appeal had no reasonable prospect of success. The Employment Judge was correct to hold that Kent was liable for salary withheld during the suspension period.
2. A suspension for suspected serious misconduct is ordinarily on full pay unless the employment contract provides otherwise. The distinction between paid and unpaid suspension would be undermined if an employer could suspend an employee under a disciplinary process and then treat that suspension itself as proof that salary was not due.
3. The employee had not been shown to be unwilling to work. He was physically available and would have had to return if the suspension had been lifted. His inability to work arose from Kent's suspension, not from an established self-created impediment. The allegations had not been proved, and Kent had made no attempt to prove that he caused his arrest or suspension by misconduct.
4. Burns v Santander UK PLC was distinguishable. In that case the employee was remanded in custody and was therefore unable to attend work. Here, the employee was not in custody. Under section 13(3) of the Employment Rights Act 1996, his contractual salary was therefore properly payable, and his readiness and willingness to work supplied all the consideration required.
5. The contractual term stating that a suspended employee would retain the pay he would have received if at work plainly provided for suspension on pay. It could not reasonably be construed as permitting Kent to withhold pay pending a later decision that there was no case to answer.

The Tribunal noted that any later civil claim by Kent could raise questions of set-off, but that possibility did not affect the employee's present entitlement.

• Employment Appeal Tribunal: Appeal dismissed. Kent County Council remained liable for the employee's withheld salary.
• Employment Tribunal: Employment Judge Milton, sitting at Ashford, held Kent County Council liable for salary arrears for the period from 8 January to 20 May 2011. The judgment was sent to the parties on 29 June 2011.