Tribunal orders London borough to pay ex-director £15k+ in withheld pay

The London Borough of Croydon must pay a former director almost £15,000 in withheld pay, which it reduced while she was off sick.

An Employment Tribunal case before Judge E Fowell accepted her claim for an unlawful deduction of £14,527.09, which Croydon said set a “worrying precedent”.

Hazel Simmonds resigned from Croydon in September 2022 having earlier been suspended.

The judge said the case turned on the wording of her contract. This set out entitlement to four months’ full pay and four months’ half pay for sickness and made no reference to any period of suspension.

A separate clause said any disciplinary issues would be dealt with in accordance with the joint negotiating position for chief officers of local authorities.

The latter provides that employees “may be suspended on normal pay” and refers to such suspensions being on full pay.

Her contract was later altered so that the provisions agreed by the Joint Negotiating Committee for Chief Officers of Local Authorities (JNC) for sickness and suspension for a chief executive applied to her case.

Simmonds’ sickness absence began in July 2021 and she was confirmed by occupational health that October as unfit for work but fit to attend meetings with adjustments.

Judge Fowell said: “The question therefore is essentially whether the contractual provisions about sick pay trump those relating to suspension or vice versa.

“There are policy arguments that could be made either way. On one hand, a suspended employee might be able to avoid meetings and frustrate the disciplinary process by pleading illness and still be able to take advantage of full pay, if that was the obligation while suspended.

“On the other hand, an employee suspended for a long period of time might well suffer the demoralising effects of such a process and become ill, in which circumstances it would be arguably be unfair on them to have their pay cut.”

The judge concluded a clear contractual term existed that Simmonds should receive full pay while suspended, and there had been a shortfall of £14,527.09.

There was no costs order because “whatever the position in hindsight it could not be said that the council’s position had no reasonable prospects of success”, the judge said.

Simmonds’ solicitor Mark Greenburgh, of Greenburgh & Co, said: “I see nothing novel or surprising in the decision, the JNC for chief executives’ conditions of service are manifestly clear, ‘any’ suspension is on full pay.

“In relation to more junior officers, it is overwhelmingly the case that this position is similarly observed."

He claimed that many offers had been made to Croydon to settle the litigation, but "all have fallen on deaf ears”.

Greenburgh said Simmonds would now pursue cases for victimisation and aggravated damages.

Simmonds was appointed by Croydon in 2018 to lead a new directorate called ‘gateway, strategy and engagement’, which included housing, strategy, policy development, communications, community relations, and the council’s Gateway welfare service. She was previously Croydon’s interim director for council homes, districts and regeneration.

A Croydon spokesperson said: “The judge's ruling sets a worrying precedent for the payment of senior staff who are sick while suspended.

“We will be considering our options, including speaking to the Local Government Association and national employers.”

Mark Smulian