What Is A Legally Unfair Dismissal Procedure?

A legally unfair dismissal procedure refers to the process an employer follows when terminating an employee's contract in a way that fails to meet the legal standards of fairness required under UK employment law. In England and Wales, dismissal is not only assessed on whether there is a valid reason, but also on whether the employer followed a fair and reasonable procedure.

Even where an employer has a potentially fair reason for dismissal-such as misconduct, capability, redundancy, or statutory restriction-the dismissal may still be legally unfair if the procedure used is flawed. Employment Tribunals focus heavily on procedural fairness when deciding unfair dismissal claims under the Employment Rights Act 1996.

Legal Framework for Fair Dismissal Procedures

The legal basis for assessing fairness comes primarily from the Employment Rights Act 1996 (Employment Rights Act 1996). Under this framework, a dismissal must be:

• For a potentially fair reason
• And carried out using a fair procedure in all the circumstances

Tribunals also apply the “range of reasonable responses” test, which considers whether a reasonable employer would have acted in the same way.

In addition, the ACAS Code of Practice on Disciplinary and Grievance Procedures sets out minimum expected standards for fair procedure. While not legally binding, tribunals take it into account and may adjust compensation if it is not followed.

What Makes a Dismissal Procedure Legally Unfair?

A dismissal procedure becomes legally unfair when the employer fails to follow basic standards of fairness before deciding to terminate employment.

1. Lack of proper investigation

A fair procedure requires a reasonable investigation before dismissal decisions are made. A procedure may be unfair if:

• Allegations are not properly investigated
• Evidence is incomplete or ignored
• The investigation is biased or one-sided

Tribunals expect employers to establish facts before taking disciplinary action.

2. Failure to inform the employee of allegations

Employees must be clearly told:

• What they are accused of
• The evidence being relied upon
• The potential consequences, including dismissal

If an employee is not properly informed, they cannot respond effectively, which undermines fairness.

3. No opportunity to respond (lack of a hearing)

A key requirement of a fair procedure is the right to a disciplinary hearing. A dismissal may be legally unfair if:

• The employee is not invited to a meeting
• They are not allowed to present their case
• They are denied the chance to challenge evidence

This applies even in cases of alleged misconduct.

4. Denial of the right to be accompanied

Employees generally have the statutory right to be accompanied by a colleague or trade union representative at disciplinary or grievance hearings. Failure to allow this can contribute to procedural unfairness.

5. Predetermined outcomes

A dismissal procedure is unfair if the decision appears to have been made in advance. Indicators include:

• No genuine consideration of evidence
• Disciplinary meetings treated as a formality
• Ignoring mitigation or explanations

Tribunals require decision-makers to approach cases with an open mind.

6. Failure to follow internal policies

Employers are expected to follow their own disciplinary and dismissal procedures unless there is a good reason not to. Unfairness may arise where:

• Internal policies are ignored
• Steps such as warnings are skipped without justification
• Procedures are inconsistently applied

Consistency is a key element of fairness.

7. Lack of appeal process

A fair dismissal procedure normally includes the right to appeal. Failure to provide an appeal opportunity may render a dismissal procedurally unfair, particularly in misconduct and capability cases.

The Role of the ACAS Code of Practice

The ACAS Code of Practice on Disciplinary and Grievance Procedures outlines expected standards, including:

• Conducting a reasonable investigation
• Informing employees of issues in writing
• Holding disciplinary hearings
• Allowing employees to be accompanied
• Providing an appeal process

While not legally binding, Employment Tribunals can increase or reduce compensation by up to 25% where the Code is not followed.

Substantive vs Procedural Unfairness

It is important to distinguish between:

Substantive fairness

Whether there was a valid reason for dismissal (e.g. misconduct or redundancy).

Procedural fairness

Whether the correct process was followed.

A dismissal can be:

• Substantively fair but procedurally unfair
• Procedurally fair but substantively unfair
• Or both unfair

Tribunals assess both elements when deciding cases.

Examples of Unfair Dismissal Procedures

Example 1: No disciplinary hearing

An employee is dismissed for alleged misconduct without any meeting or opportunity to respond. This is likely procedurally unfair.

Example 2: Inadequate investigation

An employer dismisses an employee based solely on a complaint without reviewing evidence or speaking to witnesses.

Example 3: No appeal offered

An employee is dismissed and told the decision is final, with no right of appeal.

Example 4: Ignoring company policy

A company policy requires written warnings before dismissal, but the employer dismisses immediately without warnings or justification.

Tribunal Assessment of Procedural Fairness

Employment Tribunals assess whether:

• The employer acted reasonably in the circumstances
• A fair and thorough process was followed
• The employee had a proper opportunity to respond
• The decision was based on reasonable evidence
• Any procedural defects materially affected the outcome

Even where mistakes are made, a dismissal may still be fair if the tribunal concludes the outcome would have been the same.

Consequences of an Unfair Dismissal Procedure

If a tribunal finds procedural unfairness, possible outcomes include:

• Compensation for loss of earnings
• Basic award based on length of service
• Adjustments for ACAS Code breaches
• Possible reductions for contributory conduct

Reinstatement or re-engagement is rare but possible.

Time Limits for Claims

Unfair dismissal claims must generally be brought within:

• 3 months minus 1 day from the effective date of termination

This deadline is extended during ACAS Early Conciliation, which must usually be completed before filing a claim.

Common Misunderstandings

“A good reason makes dismissal fair”

A valid reason alone is not enough. The procedure must also be fair.

“Small procedural mistakes do not matter”

Minor errors may be overlooked, but serious or outcome-affecting failures can render a dismissal unfair.

“Probationary employees have no rights”

Employees may still have protection depending on circumstances, including statutory rights and discrimination protections.

Key Takeaways

A legally unfair dismissal procedure occurs when an employer fails to follow a fair and reasonable process when terminating employment. This includes inadequate investigation, lack of employee participation, failure to provide hearings or appeals, and non-compliance with the ACAS Code of Practice. Employment Tribunals assess both the reason for dismissal and the fairness of the procedure used. Even where a dismissal has a valid reason, procedural flaws can result in a finding of unfair dismissal and financial compensation.