Penalties that stop short of dismissal

A disciplinary or capability procedure need not lead to dismissal. Alternatives are likely to include the withholding of sick pay or suspension. The law protects individuals from having unauthorised deductions made from their wages. Acas says for this to be lawful the deduction would have to be:

• required or authorised by legislation (for example, Income Tax or National Insurance deductions);

• authorised by the worker’s contract — provided the worker has been given a written copy of the relevant terms or a written explanation of them before it is made; and

• consented to by the worker in writing before it is made.

Where a decision is made to suspend an employee, they should be invited to a meeting where the need for suspension is discussed. The employer should explain why suspension is needed and what alternatives were considered, with the explanation recorded in writing and given to the employee during the suspension meeting. The employer should allow the employee to explain their side of the case before concluding that suspension is needed (Agoreyo v London Borough of Lambeth [2017] EWHC 2019). An employee who is suspended should receive full pay.

These measures can be open to negotiation. For example, at AAH Pharmaceuticals, organised by the Usdaw retail union, the policy of sick pay not being paid to staff on a verbal warning ended as part of the 2021 pay settlement.