What Is Procedural Fairness in Dismissal Decisions?

Procedural fairness in dismissal decisions refers to the process an employer must follow when deciding to terminate an employee's contract. Even where an employer has a potentially fair reason for dismissal, the dismissal may still be unlawful if the procedure used is unfair.

In UK employment law, procedural fairness is a central part of the test for unfair dismissal under the Employment Rights Act 1996. Employment tribunals assess not only the reason for dismissal but also whether the employer acted reasonably in the way the decision was reached.

This article explains what procedural fairness means, the standards expected of employers, and how tribunals evaluate dismissal processes in England and Wales.

Legal Basis of Procedural Fairness

Procedural fairness is not defined in a single statutory provision. Instead, it is developed through:

• Section 98 of the Employment Rights Act 1996
• Case law on the “range of reasonable responses” test
• The ACAS Code of Practice on Disciplinary and Grievance Procedures

Tribunals consider whether the employer followed a fair and reasonable process in all the circumstances, taking into account size and resources of the organisation.

Core Principle of Procedural Fairness

The key principle is that an employee should not be dismissed without:

• Knowing the case against them
• Having an opportunity to respond
• Having the decision made by an impartial process
• Being allowed to appeal the decision

Procedural fairness ensures that dismissal is not arbitrary or rushed and that decisions are based on properly tested evidence.

Key Elements of a Fair Dismissal Procedure

1. Proper investigation

Before any disciplinary decision, the employer must carry out a reasonable investigation.

This includes:

• Gathering relevant evidence
• Interviewing witnesses where appropriate
• Reviewing documents and records
• Avoiding premature conclusions

The depth of investigation should be proportionate to the seriousness of the allegations.

2. Clear communication of allegations

The employee must be informed of:

• The specific allegations
• The evidence supporting them
• The potential consequences, including dismissal

This is usually done through a formal disciplinary letter.

Without clear notice, the employee cannot properly defend themselves.

3. Disciplinary hearing

A disciplinary hearing is a core requirement of procedural fairness.

At this stage:

• The employee can respond to allegations
• Evidence is reviewed
• Both sides may present information

The hearing should be conducted by someone who is impartial and not previously involved in forming conclusions.

4. Right to be accompanied

Employees have the statutory right to be accompanied at disciplinary and appeal hearings by:

• A trade union representative, or
• A colleague

This ensures support and fairness in presenting the employee's case.

5. Consideration of evidence and mitigation

Decision-makers must:

• Weigh all evidence fairly
• Consider explanations provided by the employee
• Take into account mitigating factors (e.g. length of service, personal circumstances, disciplinary record)

A failure to consider mitigation can render a dismissal procedurally unfair.

6. Consistency of treatment

Employers must apply disciplinary rules consistently.

Procedural fairness may be undermined if:

• Similar misconduct is treated differently without justification
• Rules are applied inconsistently between employees
• There is evidence of bias or discrimination

7. Right of appeal

A fair disciplinary process normally includes a right of appeal.

An appeal allows:

• Review of the original decision
• Correction of procedural errors
• Consideration of new evidence

Appeals must be genuine and not a formality.

ACAS Code of Practice and Procedural Fairness

The ACAS Code of Practice on Disciplinary and Grievance Procedures provides practical guidance on fair procedures.

Tribunals take the Code into account when assessing fairness. While it is not legally binding, failure to follow it can:

• Increase the likelihood of an unfair dismissal finding
• Lead to an uplift in compensation (up to 25%)

Key expectations under the Code include:

• Informal resolution where appropriate
• Written notice of allegations
• Opportunity to respond
• Impartial decision-making
• Right of appeal

Procedural Fairness in Different Types of Dismissal

Conduct dismissals

Require full disciplinary process, including investigation and hearing.

Capability dismissals

Require warnings, support measures, and time to improve before dismissal.

Redundancy dismissals

Require consultation, fair selection criteria, and consideration of alternatives.

Summary (gross misconduct) dismissals

May proceed more quickly but still require investigation and a fair hearing before dismissal.

Tribunal Approach to Procedural Fairness

Employment tribunals do not require perfection. Instead, they assess whether:

• The employer acted reasonably in all circumstances
• The process was broadly fair
• Any procedural defects were serious enough to affect the outcome

Minor procedural errors may not make a dismissal unfair if the outcome would likely have been the same.

However, serious failures often lead to findings of unfair dismissal even where misconduct or redundancy is proven.

Common Procedural Failures

Typical procedural issues leading to unfair dismissal claims include:

• No proper investigation before dismissal
• Failure to inform the employee of allegations
• No disciplinary hearing held
• Decision-maker involved in investigation and judgment
• No opportunity to appeal
• Lack of evidence disclosure

These failures frequently result in tribunal compensation awards.

Procedural Fairness vs Substantive Fairness

Employment tribunals assess two distinct aspects:

• Substantive fairness: Was there a valid reason for dismissal?
• Procedural fairness: Was the process fair and reasonable?

A dismissal can be unfair if either element is missing.

Remedies for Procedural Unfairness

If a dismissal is found to be procedurally unfair, tribunals may order:

• Compensation for financial loss
• Basic award (similar to redundancy calculation)
• Compensatory award for lost earnings and benefits

In some cases, compensation may be reduced if procedural fairness would not have changed the outcome.

Time Limits for Claims

Claims must generally be brought within:

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

ACAS Early Conciliation must be completed before submitting a tribunal claim.

Key Takeaways

Procedural fairness in dismissal decisions requires employers to follow a fair and transparent process before terminating employment. This includes proper investigation, clear communication of allegations, a disciplinary hearing, the right to be accompanied, consideration of evidence and mitigation, and a right of appeal. Employment tribunals assess whether the employer acted reasonably overall, and failures in procedure can render a dismissal unfair even where a valid reason exists.