Employment news – October 2022 round-up

IR35 rules to remain in place

As part of its Growth Plan, published on 23 September 2022, the Government announced that from April 2023 it would be reversing the off-payroll working rules that have been in place for private sector employers since April 2021 (2017 in the public sector). Under these rules, responsibility for determining the employment status of contractors for tax purposes was transferred to the end-client. The Government’s intention was therefore that the rules would revert to the previous position, where the individual contractor determined their own status for tax purposes.

On 17 October, the new Chancellor, Jeremy Hunt, announced a reversal of the majority of tax-related measures in the Growth Plan. He has confirmed that the reversal to current off-payroll rules will no longer take place, meaning that the end-client will retain the responsibility for determining employment status for tax purposes.

New Acas guidance on suspensions

Acas has published new guidance for employers on dealing with staff suspensions in the workplace.

The guidance makes it clear that suspension should only be resorted to in serious circumstances where there are no alternatives. This will normally only be where suspension is necessary in order to carry out a fair investigation, or if medical or pregnancy suspension is required to protect an employee’s health and safety.

Case law has previously established that suspension should not be a “knee jerk” reaction to allegations of misconduct. The guidance states that employers should only consider suspension if it is needed to protect any of the following:

• The investigation, for example if there is a risk of interference with witnesses or evidence;
• The business, if there is a genuine risk to customers, property or business interests;
• Other staff;
• The person under investigation.

Acas suggests a number of alternative, temporary, measures to suspension for employers to consider, including:

• Changing shifts
• Working in a different part of the organisation
• Working from home
• Working from a different office or site
• Stopping the employee from doing part of their job (eg stock handling, if the allegation concerns stock going missing)
• Working with different customers or away from customers
• Stopping the employee from using or having access to a specific system or tool

The practicality of these options will be dependent on the employee’s role and the nature of the allegations made against them. Suspension might still be the appropriate course of action, but it is important for employers to consider all the possible options and to record their reasons for deciding on suspension.

The Acas guidance also emphasises the importance of supporting the employee during the period of suspension, recognising that suspension can be stressful for the individual and impact their mental health. Employers should make it clear when implementing the suspension that it does not mean they have decided that the employee has done something wrong. The period of suspension should be kept as brief as possible and the employer should make regular contact to update the employee on progress with the investigation. It is also important that those involved keep the suspension confidential, wherever possible.

A failure by employers to follow the recommendations in the new guidance is likely to support an employee’s claim for unfair dismissal, although as non-statutory guidance it is not binding on employers and will not result in an uplift in compensation in the same way as a failure to follow a statutory code of practice would do.

Supporting disabled employees

The Government has announced a new online service that is intended to help employers support employees with disabilities and health conditions.

The service, which is aimed at smaller businesses without in-house HR support, will be free for employers to access. It will provide information and advice on supporting and managing employees with disabilities or health conditions, to help businesses develop more inclusive workforces. It will help employers to understand their legal obligations, including how to make reasonable adjustments for disabled people and those with health conditions.

A test version of the service is now available and will be further developed over the next three years.

Draft guidance on monitoring

The Information Commissioner’s Office (ICO) has recently published new draft guidance on monitoring at work. The new guidance is open for consultation until 11 January 2023.

The detailed guidance aims to provide practical guidance for organisations of all sizes and sectors on monitoring workers in accordance with data protection legislation and to promote good practice. It sets out how employers can legally monitor workers by identifying a lawful basis for monitoring and conducting a data protection impact assessment (DPIA) in advance. It also addresses specific kinds of monitoring, including covert monitoring.

The ICO has also published a separate impact-scoping document and is seeking feedback from stakeholders.