There has been much criticism of the CEST tool and as a result an improved version was made available at the end of November 2019. However, there have still been some concerns expressed regarding its accuracy and also regarding the potential financial burden associated with implementation of the extended rules. In response the government launched a review into the implementation of changes to the off payroll working rules which are due to be extended into the private sector for workers providing services to medium of large clients from 6 April 2020.
The government is to gather evidence from affected individuals in business by conducting a series of round table meetings to attempt to ensure smooth implementation of the reforms and will also assess whether any additional support is required to ensure that the genuinely self employed are not affected. The government will also carry out further internal analysis including a review of the enhanced CEST tool and also public sector bodies’ experience of implementing the reform of the off payroll working rules in 2017. Finally, the government is to determine if any further steps can be taken to ensure the smooth and successful implementation of the reforms.
This may come as a disappointment to employers who had hoped that implementation of the changes to the off payroll working rules would be delayed or suspended. That does not seem to be the aim of this review, the result of which is expected to be completed by around mid February.
CASE REPORT
HARRISON v BARKING, HAVERING & REDBRIDGE UNIVERSITY HOSPITALS NHS TRUST
This is yet another case which urges employers to be cautious of suspension of employees pending investigation of alleged disciplinary breaches, particularly in the case of professional employees.
Ms H is the Deputy Head of Legal Services for an NHS Trust and her work involves inquest work, handling claims, advisory work and legal teaching. She was suspended following concerns about her handling of a clinical negligence case but was not provided with details of the allegations against her. She was subsequently diagnosed with stress.
The NHS Trust then requested that Ms Harrison undertake a phased return to work on restricted duties auditing files and carrying out legal teaching but not doing case work. She refused on the basis she believed it was a demotion and contrary to medical advice and was again suspended for refusing to obey an instruction. She sought an injunction (interdict in Scotland) permitting her to perform most of her normal duties autonomously. She argued that the Trust’s acts on omissions breached the implied duty of trust and confidence and that this was harmful to her health.
The court found that:-
- Ms Harrison had good grounds to argue that the Trust’s actions amounted to a breach of the implied duty of trust and confidence. In particular it found there was no reasonable cause for suspending her from most of her normal duties.
- Criticisms of her inquest and medico- legal work purporting to justify the restriction on her duties had been made after the decision to suspend her had been taken and she was not presented with any evidence of mis-management of her inquest work or incorrect medico legal advice.
- The court also found that damages were not an adequate remedy and that the balance of convenience was in Ms Harrison’s favour because there was no evidence that undertaking normal duties (except clinical negligence case work) would harm the trust whereas in the contrary the suspension had affected her health and were professionally damaging.
- The granting of an interim injunction (interdict) is very rare in employment cases as courts are traditionally reluctant to interfere in the relationship between the employer and the employee. However, this case demonstrates that broad brush/careless decisions to suspend employees, especially those who hold professional posts, without sufficient supporting evidence may be viewed unsympathetically by the courts. Suspension should be an act of last resort and also proportionate in response to the evidence which the employer has in its possession at the time the decision is made.
