How to Identify Breaches of Disciplinary Procedure in Dismissal Cases

In unfair dismissal cases in England and Wales, one of the most common grounds of challenge is that the employer failed to follow a fair disciplinary procedure. Under section 98 of the Employment Rights Act 1996, dismissal must be both for a potentially fair reason and carried out in a fair manner. Procedural fairness is assessed by Employment Tribunals using principles of reasonableness and compliance with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Identifying breaches of disciplinary procedure is therefore central to evaluating whether a dismissal may be legally unfair. Even where an employer has a valid reason such as misconduct or capability concerns, procedural defects can render the dismissal unfair or increase compensation awards.

Legal Framework for Disciplinary Procedures

Employment Rights Act 1996

The legal test for fairness requires tribunals to consider:

• Whether the employer had a genuine belief in misconduct or capability issues
• Whether that belief was based on reasonable grounds
• Whether a reasonable investigation was carried out
• Whether dismissal was within the range of reasonable responses

Procedural fairness is a key part of this assessment.

ACAS Code of Practice

The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out minimum standards for fair disciplinary action. Tribunals take compliance into account and may adjust compensation by up to 25% where there is unreasonable failure to follow the Code.

Key principles include:

• Informing the employee of allegations in writing
• Carrying out a reasonable investigation
• Holding a disciplinary hearing
• Allowing the employee to respond
• Permitting accompaniment at hearings
• Offering a right of appeal

Common Breaches of Disciplinary Procedure

1. Failure to conduct a proper investigation

A disciplinary process must begin with a fair and reasonable investigation. Breaches include:

• No investigation at all before dismissal
• Superficial or rushed investigation
• Failure to interview relevant witnesses
• Ignoring evidence that supports the employee
• Relying on assumptions rather than facts

Tribunals expect the level of investigation to be proportionate but still reasonable in all circumstances.

2. Lack of written allegations

A fundamental procedural requirement is that the employee is informed of the case against them. Breaches include:

• Verbal-only allegations with no written notice
• Vague or unclear disciplinary charges
• Failure to specify relevant dates or incidents
• Changing allegations during the process without notice

Without clear allegations, an employee cannot properly respond.

3. Failure to hold a disciplinary hearing

A disciplinary hearing is a core element of fairness. Breaches include:

• Dismissal without any hearing
• Informal meetings treated as disciplinary hearings without warning
• Decision-maker not attending the hearing
• Predetermined outcomes before hearing takes place

Tribunals often view the absence of a proper hearing as a serious procedural flaw.

4. Denial of the right to be accompanied

Employees have the statutory right to be accompanied at disciplinary hearings by a colleague or trade union representative. Breaches include:

• Refusing accompaniment without lawful reason
• Not informing the employee of this right
• Proceeding with a hearing despite reasonable requests for representation

This right is protected under section 10 of the Employment Relations Act 1999.

5. Failure to provide evidence in advance

Fair procedure generally requires that the employee is given sufficient information before the hearing. Breaches include:

• Not sharing investigation reports
• Withholding witness statements
• Providing evidence only at the hearing
• Introducing new allegations without prior notice

This undermines the employee's ability to prepare a meaningful response.

6. Bias or lack of impartial decision-making

Decision-makers must be impartial. Procedural breaches include:

• Investigator and decision-maker being the same person without justification
• Prejudgment of the outcome
• Conflicts of interest not disclosed
• Managers involved in the complaint sitting on appeal panels

Lack of impartiality can render the process unfair even if other steps are followed.

7. Failure to follow internal disciplinary policies

Employers are generally expected to follow their own disciplinary procedures. Breaches include:

• Skipping stages of a formal process
• Not issuing warnings where policy requires them
• Failing to escalate warnings in line with procedure
• Deviating from policy without justification

Tribunals consider whether deviation was reasonable in the circumstances.

8. Absence of a right of appeal

A fair disciplinary process usually includes a right of appeal. Breaches include:

• No appeal offered after dismissal
• Appeal not heard by an independent manager
• Appeal hearing being a formality with no genuine review
• Failure to consider new evidence on appeal

The appeal stage is often important in correcting earlier procedural defects.

How to Identify Procedural Breaches Step by Step

Step 1: Reconstruct the disciplinary timeline

Create a chronological record of events:

• First allegation or complaint
• Investigation steps taken
• Disciplinary invitation and hearing
• Decision and dismissal
• Appeal process (if any)

This helps identify missing or irregular stages.

Step 2: Compare actions against ACAS Code requirements

Check whether the employer:

• Communicated allegations clearly
• Conducted a reasonable investigation
• Held a proper hearing
• Allowed representation
• Provided an appeal

Any deviation may indicate procedural breach.

Step 3: Review documentary evidence

Key documents include:

• Disciplinary policy
• Invitation letters
• Investigation reports
• Meeting notes
• Outcome letters

Gaps or inconsistencies may indicate non-compliance.

Step 4: Identify inconsistencies or gaps

Look for:

• Missing meeting records
• Sudden escalation without warnings
• Contradictory reasons for dismissal
• Lack of documentation supporting allegations

These often indicate procedural weaknesses.

Step 5: Assess fairness in context

Tribunals apply a “range of reasonable responses” test. Not every technical error leads to unfair dismissal. Relevant considerations include:

• Size and resources of the employer
• Seriousness of allegations
• Practical constraints during investigation
• Whether errors materially affected outcome

Impact of Procedural Breaches on Tribunal Claims

Procedural breaches can:

• Lead to a finding of unfair dismissal even where misconduct is proven
• Increase compensation by up to 25% for ACAS Code non-compliance
• Strengthen settlement negotiations
• Affect credibility of employer witnesses

However, tribunals may still find dismissal fair if the outcome would likely have been the same even with a perfect procedure.

Common Legal Misconceptions

Minor errors automatically make dismissal unfair

Not necessarily. Tribunals assess overall fairness, not perfection.

Employers must always follow a rigid process

Procedures must be fair and reasonable, but flexibility is allowed depending on circumstances.

A single breach guarantees compensation

Compensation depends on whether the breach affected the outcome or fairness of dismissal.

Practical Importance in Unfair Dismissal Claims

Identifying disciplinary breaches is central to:

• Drafting tribunal claims (ET1 forms)
• Preparing witness statements
• Assessing case strength and settlement value
• Challenging employer evidence at hearing
• Supporting arguments on procedural unfairness

These issues often form the core of unfair dismissal disputes.

Key Takeaways

Breaches of disciplinary procedure are a key factor in unfair dismissal claims under UK employment law. Common issues include inadequate investigation, failure to hold a proper hearing, lack of written allegations, denial of representation, and non-compliance with internal policies or the ACAS Code. Employment Tribunals assess procedural fairness alongside the employer's substantive reason for dismissal. Identifying these breaches requires careful analysis of documents, timelines, and procedural steps to determine whether the dismissal process was legally fair.