Disciplinary process before dismissal

This is one of the most important practical questions in employment law, and the answer depends on several factors, including the employee's length of service, the reason for dismissal, and the size and resources of your organisation.

The short answer: In most cases, yes, you should follow a fair disciplinary process before dismissing an employee. But the legal obligations vary depending on the circumstances.

Employees with two or more years of continuous service:

These employees have the right not to be unfairly dismissed under Part X of the Employment Rights Act 1996. To defend an unfair dismissal claim, you must show both a potentially fair reason for dismissal (such as conduct, capability, redundancy, illegality, or some other substantial reason) and that you acted reasonably in treating that reason as sufficient to dismiss, which includes following a fair procedure.

The leading authority on procedural fairness remains the principles in BHS v Burchell for misconduct cases, and the general requirement under section 98(4) of the Employment Rights Act 1996 that the employer acted reasonably in all the circumstances.

A fair process will normally involve the following steps:

1. Investigate the matter properly before taking action.
2. Set out the allegations clearly in writing.
3. Invite the employee to a disciplinary hearing, giving them reasonable notice and the right to be accompanied.
4. Hold the hearing and genuinely consider what the employee says.
5. Make a decision and communicate it in writing with reasons.
6. Offer a right of appeal.

This broadly reflects the Acas Code of Practice on Disciplinary and Grievance Procedures, which employment tribunals are required to take into account under section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992. An unreasonable failure to follow the Acas Code can lead to an uplift in compensation of up to 25 per cent.

Employees with less than two years of continuous service:

These employees generally do not have the right to claim ordinary unfair dismissal. This means the legal risk of dismissing without a full process is lower. However, there are important exceptions. Even employees with no qualifying service can bring claims for automatically unfair dismissal (for example, dismissal connected to whistleblowing, pregnancy, asserting a statutory right, trade union activities, or various other protected grounds) and for discrimination under the Equality Act 2010. If such a claim is brought, the absence of any process will look very poor and can be used as evidence supporting the employee's case.

As a practical matter, even with short-service employees, it is sensible to have at least a basic documented process showing a legitimate reason for the dismissal.

Gross misconduct and summary dismissal:

Even where the alleged misconduct is extremely serious and you are considering summary dismissal without notice, you still need to follow a fair disciplinary process before making the decision to dismiss. Summary dismissal means dismissal without notice, not dismissal without process. Skipping the process is one of the most common and costly mistakes employers make.

Probationary periods:

A probationary period does not exempt you from following a fair process. It may allow for a shorter notice period under the contract, but if the employee has the qualifying service for unfair dismissal rights, you still need to act fairly and follow a reasonable procedure.

Practical guidance:

If you are considering dismissing someone, the safest and most sensible approach in almost all cases is to follow the Acas Code and run a proper process. This protects you against unfair dismissal claims, discrimination claims, and potential uplifts to compensation. It also tends to produce better decisions, because a proper investigation sometimes reveals that the situation is not what it first appeared.

The Acas Code of Practice on Disciplinary and Grievance Procedures is freely available and is the starting point for any employer. If your organisation has its own disciplinary policy, you should follow that as well, because a failure to follow your own policy can itself support a finding of unfairness.

If the situation is urgent or complex, for example involving allegations of discrimination, whistleblowing, or an employee who is off sick or pregnant, the procedural requirements become more nuanced and the risks increase significantly.