UK: Keeping You In Suspense

Last Updated: 17 January 2001


If an employer tries to suspend an employee without pay when he has no right to do so the suspension may amount to a fundamental breach of contract. In this case the employee will be entitled, if he wishes, to treat the contract as repudiated by the employer. He may resign and claim constructive dismissal.

Sometimes an employer may decide that, in order to carry out a proper investigation into a more serious disciplinary matter, such as an act of gross misconduct, it might be preferable not to have the offending employee at work until all appropriate and necessary enquiries have been completed. In these circumstances, an employer will suspend the employee usually on full pay, 'pending a full investigation'. Having completed this initial stage of its disciplinary procedure, the employee will be invited to attend a disciplinary hearing, given the opportunity to answer any allegations put to him and put forward his version of events, before the final decision is made by the employer.

An employer may reserve the express right in the contract of employment temporarily to suspend an employee on reduced or no pay. If the right is exercised the contract will continue to subsist and the suspension will not constitute a termination of that contract of employment. So, even though the employee cannot come to work, there will not be a dismissal for unfair dismissal purposes – as yet.

A term will be implied into the contract that the employer can only exercise a right to suspend on reduced or nil pay if he has reasonable grounds and only for so long as it is reasonable.

In the case of McClory v Post Office the Court had to consider a case where three employees were involved in a fight following which they were suspended for six months. The contract provided that they could be suspended without pay. During this time they received only normal pay and not the pay that they would have received in respect of any overtime that they would have worked if they had not been suspended. They brought a claim for damages for loss of the overtime pay and the Court held that although there was an implied term that the employer would only exercise its right to suspend on reasonable grounds this was on the basis that it would only do so for as long as there were reasonable grounds for so doing. In the event the Court found that the employers were not in breach of such implied terms.

There is no general or implied right to suspend an employee without pay. Thus the burden is on the employer, who claims such a right, to prove he is entitled to suspend the employee.

Of course in following a fair and proper disciplinary procedure an employee should be given the chance to appeal against any decision which the employer reaches regarding his future with the employer.

An interesting and related dilemma is whether, during the period between notification of any original decision to dismiss and the outcome of an appeal, the employee concerned stands dismissed with the possibility of reinstatement (in which case the effective date of termination of the contract will be the date of the original dismissal) or suspended with the possibility of the proposed dismissal not being confirmed and the suspension thus being ended (in which case the date of termination of the contract will be the date the appeal is turned down).

An example of the first scenario is the case of Savage v Sainsbury Limited. There it was held that the existence of a contractual term which provided that 'pending the decision of an appeal to the director against dismissal, the employee will be suspended without pay but if reinstated will receive full back pay for the period of suspension', did not operate to keep alive the employment relationship after the date of the employee’s summary dismissal. Although the employee had the right to invoke an internal appeal procedure which actually survived the termination of his relationship with his employer, the effective date of termination was not altered and was the date when the legal relationship ceased to have effect. Had his appeal succeeded the relationship would have been rescued because the employee would have been reinstated with full back pay.

In Drage v Governors of Bradford High School an employee was suspended pending the outcome of an appeal. The effect of this was that although the employee was notified of his dismissal, that dismissal would not be implemented until the appeal. If successful in any appeal the employee would be deemed not to have been dismissed at all. If unsuccessful, the dismissal would take effect on the date when he is notified that the appeal has not been successful.

Gogay v Hertfordshire County Council and Symbian Limited v Christianson present examples of the two most common circumstances resulting in the decision to suspend an employee during his employment; the first when the employee has been accused of a disciplinary offence and the employer wishes to investigate the accusation in the employee’s absence; the second when the employee has given or received notice of the termination of his employment and the employer is concerned to keep him away from its clients, employees and confidential information (usually because the employee intends to join a competitor) – commonly known as garden leave.

Both these cases highlight the need for employers to exercise caution before suspending employees in such circumstances and represent a significant development in the law of implied terms.

Suspension is not simply a matter of preserving the status quo – Gogay shows that it has far-reaching effects on the employee’s health and reputation and can ultimately be damaging to the employer’s business.

Here the Court of Appeal held that the suspension of a care worker pending the outcome of an investigation into an allegation that the worker sexually abused a child in care was a breach of the implied term of trust and confidence. The Court then went on to hold that the employee was entitled to damages for the psychiatric illness she suffered as a result of that breach.

Gogay shows that employers should consider whether there is a case to answer for suspending, particularly in cases where serious allegations are being made, such as abuse, fraud or sexual harassment. The act of suspension can easily be interpreted by a third party as a guilty verdict. An individual who suffers psychiatric illness as a result of being suspended in breach of the implied term of trust and confidence may bring a personal injury claim against his employer.

In Symbian an application was made for an injunction to restrain C from going to work for a competitor until the end of his six month notice period. Mr C attempted to leave S’s employment during his notice period after he had been placed on garden leave. Symbian serves as a reminder that where appropriate contracts of employment should contain carefully drafted provisions setting out precisely what employees can and cannot do whilst they remain employed, both generally and more specifically during the period of garden leave.

Lay Offs

There may be a temporary cessation of work when there is an interruption or suspension of the employer’s business in respect of the employee, in short a lay-off. Please see our previous legal briefing dated 14 September 2000 on the recent fuel crisis that dealt with this situation in more detail.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.