Monthly Highlights – UK Employment Law – September 2022 | Orrick, Herrington & Sutcliffe LLP

In a brand new sequence of month-to-month updates, members of our London Employment staff carry you the newest choices and developments in UK employment regulation. On this month’s replace, we define the brand new steerage issued by Acas relating to worker suspension, spotlight learnings from the Knowledge Safety Commissioner v Dooler choice, talk about takeaways from the Bailey v Stonewall gender discrimination case and set out HMRC’s newest revealed considerations in relation to using umbrella corporations.

1. The Advisory, Conciliation and Arbitration Service (Acas) has issued new guidance relating to suspending staff
   • Acas has supplied up to date steerage for: (i) deciding whether or not to droop somebody, (ii) the method for suspending somebody, (iii) supporting an worker’s psychological well being throughout suspension and (iv) pay and holidays throughout suspension. The steerage covers the under factors however ought to be referred to directly for additional element:
     1. Deciding whether or not to droop somebody: Acas recommend employers ought to fastidiously contemplate if suspension is affordable within the surrounding circumstances. If it’s not affordable, there’s a danger the employer might be in breach of the employment contract. Due to this fact, suspension ought to solely be utilised the place it’s obligatory to guard an investigation, the enterprise or workers. Consequently, it might be obligatory for an employer to deploy options to suspension, reminiscent of limiting an worker’s entry to sure prospects or IT programs or requesting that they make money working from home throughout an investigation.
     2. The method for suspending somebody: if suspension is important, the employer ought to inform the worker that the suspension doesn’t imply they’ve carried out one thing improper and make the suspension as transient as potential. The employer must also make sure that they supply as a lot element as potential in regards to the suspension with out scuppering the possibility of a good investigation. It is usually vital that, the place potential, the suspension is saved confidential and the employer continues to assist the suspended worker.
     3. Supporting an worker’s psychological well being throughout suspension: an employer has a ‘responsibility of care’ to guard an worker throughout suspension. The employer ought to due to this fact forestall psychological well being points arising or getting worse by preserving communication channels open all through the interval of suspension and limiting the suspension to the time obligatory to hold out the investigation.
     4. Pay and holidays throughout suspension: throughout suspension, an worker ought to proceed to obtain their traditional pay and any advantages beneath the contract reminiscent of entitlements to a bonus, health club membership and holidays. If the worker desires to restrict such pay or advantages they need to search authorized recommendation as this may end up in authorized motion even the place the employment contract entitles the employer to restrict the worker’s pay and advantages in periods of suspension.
   • While Acas steerage just isn’t legally binding, it’s thought of greatest apply and employers ought to due to this fact fastidiously evaluation this up to date steerage if and when contemplating suspending an worker or updating any coverage coping with suspension.
2. The Knowledge Safety Commissioner v Doolin [2022] IECA 117: employers are reminded of the significance of sustaining their information safety insurance policies
   • This case considerations a enterprise that used CCTV safety footage to substantiate allegations that an worker had (i) graffitied the enterprise’ property and (ii) taken ‘unauthorised breaks’. The aim of the CCTV footage was expressly for “the aim of well being and security and crime prevention”. Consequently, the worker argued beneath the Knowledge Safety Act 1998, the footage was used for monitoring staff and disciplinary processes and this was opposite to the enterprise’ processing coverage.
   • After quite a few appeals, the Court docket of Enchantment decided that:
     • Processing: the worker’s private information was processed when it was seen by the enterprise and when the enterprise recorded the ‘unauthorised breaks’ for the aim of the disciplinary investigation.
     • Function: the enterprise’ investigation into the unauthorised breaks was not for the aim of safety, however “manifestly for a distinct function”.
     • Compatibility: the worker had not been notified of the aim of processing their private information and due to this fact the non-public information couldn’t be handled as being processed pretty.
   • Though this case pertains to the DPA 1998, it emphasises the significance of sustaining an updated processing coverage; it additionally provides a sign of how the courts will method the UK Common Knowledge Safety Laws / Knowledge Safety Act 2018.
   • Employers, of their capability of information controllers, ought to make sure that information topics captured by CCTV are made conscious of all functions for which such footage could also be used. Due to this fact, all information processing insurance policies (and even signage accompanying CCTV) ought to mirror all of the potential functions of processing private information e.g., disciplinary proceedings, crime prevention and well being and security.
3. Bailey v Stonewall and others ET/2202172/2020: it was held that Backyard Court docket Chambers discriminated towards a gender crucial barrister
   • An employment tribunal has discovered {that a} barrister was the sufferer of direct discrimination and victimisation based mostly on her gender crucial views. The tribunal held that the Equality Act 2010 protected the barrister’s proper to imagine that ladies are outlined by their organic intercourse versus their gender id.
   • The tribunal due to this fact awarded £22,000 in damages for damage to emotions and £2,000 in aggravated damages.
   • This case serves as a reminder that employers could incur legal responsibility for penalising their staff for seemingly controversial views and a reminder that even the place there are conflicting transgender rights and rights referring to faith or perception, there’s a nice balancing act and obligations owed to each events.
4. Use of umbrella corporations
   • On 25 August 2022, HMRC revealed Spotlight 60 which units out a few of HMRC’s considerations in relation to umbrella corporations utilizing disguised remuneration schemes and being automobiles for tax avoidance. This isn’t the primary time that HMRC has revealed considerations in relation to using umbrella corporations.
   • While this steerage is aimed toward people who’re employed by umbrella corporations, employers who make use of umbrella corporations of their provide chain ought to be conscious that umbrella corporations proceed to be an space of curiosity for HMRC and should want to evaluation this steerage in additional element together with their association and want to make use of umbrella corporations.