Do employees have rights to pay if they are willing and able to work?

An employee will generally be entitled to be paid their wages if they are ready, willing, and able to work, unless there is some provision in their contract stipulating that the entitlement may be suspended without pay.

While failing to pay wages could lead to an employee claiming unlawful deductions from their pay, it will also amount to a fundamental breach of contract in respect of which the employee may resign and bring a claim for constructive dismissal.

The case of Hanson Quarry Products Europe Ltd of Hanson House v Mr Peter Luck concerned the employer’s defence to a constructive dismissal claim in these circumstances where there were concerns that the employee might not be fit to return to their duties.

The claimant, a lorry driver, had been signed off sick following episodes of dizziness. The employer had concerns about how safe it was for him to return to driving duties and referred him to occupational health.

The medical reports that were subsequently produced expressed some concern over whether he would be approved as fit to drive in accordance with DVLA standards following the dizzy episodes.

The Claimant was informed he would only be allowed to return to his duties if the DVLA confirmed that he was fit to drive. Following a request, the DVLA did state in writing that ‘from the information received’ he would be able to continue driving.

The Claimant considered that he had met the conditions laid down for his return to work. However, he was told that he still could not return until he signed a letter confirming he had notified the DVLA of his dizziness episode.

The Claimant refused, citing errors in the letter in relation to when he had suffered dizziness episodes. In response, the employer stopped his pay and threatened him with disciplinary action. The claimant resigned and brought claims that included constructive unfair dismissal.

It was held that in stopping the claimant’s wages when he was ready, willing and able to work there had been a breach of an express term of his contract and this had amounted to a breach of the implied duty of trust and confidence. In the circumstances he had been constructively unfairly dismissed.

The arguments put forward by the employer that the dismissal was fair in any event on grounds of capability were rejected. The alternative case put forward that there was ‘some other substantial reason’ for dismissal also failed.

It was held that while capability issues had provided the context and triggered the chain of events, it was conduct rather than capability that was the real reason for dismissal. It had been the employee’s refusal to sign the letter prepared by the employer that was at issue. The employer had considered that refusal a serious issue of misconduct.

However, in practice, even where there is the suspension of an employee pending a disciplinary matter it will usually be with pay, unless any contractual provisions state otherwise.

Key points

Employers with concerns about an employee’s fitness to work may make reasonable enquiries to ensure that the employee is able to safely return to the workplace.

Where the employee has produced evidence of their fitness any further suspension from work should not result in the employee’s pay being stopped while further enquiries are made.

In relation to conduct cases, if the employee has refused to comply with a reasonable and lawful instruction it may give grounds for disciplinary proceedings. However, suspension from work should not necessarily follow in these circumstances, and where it does it will be with pay unless there is an express exception in the contract.