HR briefing - January

In the courts

Disciplinary procedures

Employers commonly find adopting the correct procedure one of the hardest elements to get right when dealing with HR matters. The Court of Appeal has suggested internal disciplinary procedures should be subject to an implied obligation of fairness. Such an obligation, if adopted formally by the courts in future, would sit alongside several other overlapping requirements that touch on procedural fairness. The most fundamental is the obligation not to act in a way that undermines the mutual trust and confidence that forms the bedrock of all employment arrangements. This is usually shortened to the implied term of trust and confidence, and breach of the term will entitle an employee to resign. Breach can occur in all sorts of ways, including in relation to procedural matters.

Employers must also consider the so-called "Braganza" obligation (after the case of the same name) which requires discretionary decisions and fact-finding investigations, to be reasonable both as to the process adopted and the outcome reached. Those aspects of fairness have come from the courts, but perhaps the most important procedural guidance is the statutory code of practice on disciplinary and grievance procedures, published by Acas. Following the code is vital, because any unreasonable failure to follow its basic premises will entitled the Tribunal to increase any award by up to 25%.

In the news

Family-friendly policies

Clients will be familiar with the panoply of family-friendly rights: maternity leave, paternity leave, adoption leave, shared parental leave and parental leave. Saga has become the first UK company to offer paid grandparental leave, an interesting development which other companies may look to emulate in future.

Gender pay gap reporting

Analysis of the UK’s most recent gender pay gap submissions has shown that the gap remains roughly stable. The headline rate, calculated as the difference in average hourly earnings, was 9% in 2019, 7% in 2020 and 7.9% in 2021. As the ONS notes in its analysis, the 2020 and 2021 sets of data may not be entirely accurate given the upheaval in work across the UK caused by the Covid-19 pandemic.