What Are Procedural Errors in Employment Dismissals?

Procedural errors in employment dismissals occur when an employer fails to follow a fair and lawful process when terminating an employee. In England and Wales, Employment Tribunals assess not only the reason for dismissal but also whether the employer acted fairly in reaching that decision.

Under the Employment Rights Act 1996, a dismissal may be deemed unfair even if there is a valid reason, if the employer failed to follow a reasonable procedure. Procedural fairness is therefore a central issue in unfair dismissal, wrongful dismissal, and related tribunal claims.

This article explains what procedural errors are, how tribunals assess them, and how they affect dismissal claims and compensation.

Legal Framework for Procedural Fairness

Procedural fairness in dismissals is assessed under:

• Employment Rights Act 1996 (section 98)
• ACAS Code of Practice on Disciplinary and Grievance Procedures
• Employment Tribunal case law principles on fairness and reasonableness

Tribunals apply the test of whether the employer acted within the range of reasonable responses, which includes both the decision to dismiss and the process followed.

Failure to follow a fair procedure does not automatically make a dismissal unlawful, but it is a major factor in determining fairness.

What Is a Procedural Error?

A procedural error is any failure by an employer to follow a fair, consistent, and legally appropriate process before dismissing an employee.

These errors can occur at any stage, including:

• Investigation
• Disciplinary process
• Decision-making
• Appeal stage

Procedural errors are assessed in context. Minor defects may not make a dismissal unfair, but serious or cumulative failures often will.

Common Types of Procedural Errors

1. Failure to Conduct a Proper Investigation

A fair dismissal process normally requires a reasonable investigation.

Common investigation errors include:

• No investigation at all
• Superficial or biased investigation
• Failure to interview key witnesses
• Ignoring relevant evidence
• Relying on assumptions instead of facts

Tribunals expect employers to carry out investigations that are proportionate to the seriousness of the allegations.

2. Failure to Inform the Employee of Allegations

Employees must be clearly informed of:

• The allegations against them
• The evidence supporting those allegations
• The potential consequences, including dismissal

Failure to provide sufficient detail prevents the employee from responding properly and is a serious procedural defect.

3. Denial of a Fair Disciplinary Hearing

A fair disciplinary hearing is a core requirement in most dismissal cases.

Errors include:

• No hearing being held
• Employee not given opportunity to respond
• Decision made before hearing takes place
• Panel not impartial or properly constituted

Tribunals place significant weight on whether the employee had a genuine opportunity to present their case.

4. Failure to Allow a Companion

Employees have a statutory right to be accompanied at disciplinary or grievance hearings by a colleague or trade union representative.

Procedural errors occur when:

• The employer refuses this right
• The employee is not informed of the right
• The companion is unreasonably restricted

This is a clear breach of statutory procedure.

5. Lack of Evidence Disclosure

Fairness requires that employees are given access to relevant evidence before the hearing.

Common issues include:

• Withholding investigation reports
• Not sharing witness statements
• Failing to disclose documents relied upon for dismissal

Without disclosure, the employee cannot properly challenge the case against them.

6. Pre-Determination of Outcome

A dismissal is procedurally unfair if the decision is effectively made in advance.

Indicators include:

• Fixed outcome before hearing
• Decision-maker ignoring evidence
• Hearing conducted as a formality only

Tribunals view pre-determination as a serious breach of fairness.

7. Failure to Follow Internal Procedures

Employers often have disciplinary policies that form part of the employment relationship.

Procedural errors arise when:

• Internal procedures are ignored
• Steps are skipped without justification
• Policies are applied inconsistently

Even if not contractually binding, failure to follow published procedures may still support an unfair dismissal claim.

8. Inadequate Appeal Process

A fair dismissal process normally includes a right of appeal.

Common appeal errors include:

• No appeal offered
• Appeal conducted by the same decision-maker
• Failure to properly reconsider evidence
• Rubber-stamping the original decision

An inadequate appeal process can render an otherwise fair dismissal procedurally unfair.

How Tribunals Assess Procedural Errors

Employment Tribunals do not assess procedure in isolation. Instead, they consider:

• Severity of the procedural breach
• Whether the outcome would have been the same
• Overall fairness of the process
• Compliance with the ACAS Code of Practice

Minor errors may not make a dismissal unfair if the overall process was reasonable. However, serious or repeated errors often lead to a finding of unfair dismissal.

The ACAS Code of Practice and Procedural Standards

The ACAS Code of Practice sets out expected standards for disciplinary and grievance procedures.

Key principles include:

• Clear communication of allegations
• Fair and impartial investigation
• Opportunity for the employee to respond
• Right to appeal
• Reasonable and consistent decision-making

Tribunals may increase or reduce compensation by up to 25% depending on compliance with the ACAS Code.

Procedural Errors and Unfair Dismissal Claims

Procedural defects are often central to unfair dismissal claims.

A dismissal may be unfair even if:

• The employee committed misconduct
• The employer had a valid reason
• The outcome would likely have been dismissal anyway

This is because fairness is assessed both substantively (reason) and procedurally (process).

Procedural Errors in Wrongful Dismissal Cases

In wrongful dismissal (breach of contract), procedural fairness is less central but still relevant where:

• The contract requires a specific disciplinary process
• Notice provisions are not followed
• Contractual procedures are ignored

In such cases, failure to follow procedure may amount to a breach of contract.

Compensation and Procedural Errors

Procedural errors can affect compensation in several ways:

1. Basic Award and Compensatory Award

Tribunals may increase awards where procedural unfairness contributed to dismissal.

2. ACAS Uplift

Failure to follow the ACAS Code may increase compensation by up to 25%.

3. Polkey Reduction

If dismissal would have happened regardless of procedure, compensation may be reduced even if the dismissal is unfair.

Common Employer Mistakes Leading to Procedural Errors

Frequent causes of procedural defects include:

• Poor HR record-keeping
• Lack of trained disciplinary managers
• Inconsistent application of policies
• Time pressure or rushed decisions
• Failure to separate investigation and decision roles

These issues often weaken employer defence in tribunal proceedings.

Practical Importance of Procedural Fairness

Procedural fairness ensures:

• Employees understand and can respond to allegations
• Decisions are evidence-based rather than arbitrary
• Employers maintain consistent disciplinary standards
• Legal risks of tribunal claims are reduced

Tribunals place significant emphasis on fairness of process because it directly affects reliability of outcomes.

Key Takeaways

Procedural errors in employment dismissals occur when employers fail to follow a fair and lawful process before terminating employment. Common errors include inadequate investigation, lack of disclosure, denial of hearings, failure to allow representation, and defective appeal procedures.

Employment Tribunals assess both the reason for dismissal and the fairness of the process. Even where a valid reason exists, serious procedural defects can render a dismissal unfair and increase compensation. Compliance with the ACAS Code of Practice is a key factor in determining procedural fairness.