This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
A comprehensive guide to the legal consequences when employers fail to follow disciplinary procedures in England and Wales. Explains the Acas Code, tribunal considerations, unfair and wrongful dismissal, compensation uplifts, constructive dismissal, and practical steps for employees and employers.
Disciplinary procedures exist to ensure fairness and transparency when employers address misconduct, poor performance, or other workplace issues. In England and Wales, employers are expected to follow established procedures when dealing with disciplinary matters. If they fail to do so, there can be significant legal consequences, including claims to an employment tribunal, increased compensation awards, and contractual disputes. This article explains the legal framework, what it means when procedures are ignored or improperly applied, the remedies available to employees, and practical steps to consider.
Legal Framework for Disciplinary Procedures
Statutory Expectation of Fair Procedures
There is no single statute that prescribes exactly what disciplinary procedures must contain. However, UK employment law and established case law require employers to act fairly and reasonably when taking formal disciplinary action, including dismissal. This is particularly relevant in unfair dismissal claims.
The Acas Code of Practice on Disciplinary and Grievance Procedures
The Advisory, Conciliation and Arbitration Service (Acas) Code of Practice sets out the minimum standards of fairness that employers should follow when addressing disciplinary and grievance issues. While the Code is not legally binding in itself, tribunals must take it into account when considering relevant claims.
Key principles in the Code include:
- Promptly raising and dealing with issues without unreasonable delay.
- Acting consistently and fairly in applying procedures.
- Carrying out thorough investigations before decisions are made.
- Informing employees of the basis of allegations and allowing them to respond.
- Allowing employees to be accompanied at meetings.
- Providing a right of appeal.
Failure to follow these principles can affect the outcome of tribunal claims, particularly unfair dismissal claims.
What Happens When Procedures Are Not Followed
Unfair Dismissal Claims
If an employer dismisses an employee without following a fair disciplinary procedure, the dismissal may be procedurally unfair. In an employment tribunal claim, the tribunal will assess whether the employer acted within a reasonable range of responses in the circumstances. Ignoring or improperly applying key elements of a fair process can lead to a finding of unfair dismissal.
For example:
- Failing to investigate allegations objectively.
- Not giving the employee an opportunity to respond to evidence.
- Proceeding to dismissal without a proper hearing.
These defects can undermine the fairness of the employer's decision and strengthen an unfair dismissal claim.
Acas Code Uplift
When a tribunal finds that an employer has unreasonably failed to follow the Acas Code, it can increase any compensation award by up to 25 per cent. This uplift applies where the failure relates to the disciplinary process in an unfair dismissal claim. Tribunals consider what is reasonable in all the circumstances, including the size and resources of the employer.
Conversely, if an employee unreasonably fails to follow the Code (for example, not engaging with the employer's procedure when required), a tribunal may reduce the compensation award by up to 25 per cent.
Wrongful Dismissal and Contractual Breach
If an employer fails to follow a contractual disciplinary procedure that is expressly part of the employment contract or handbook, this may give rise to a wrongful dismissal claim. Wrongful dismissal is a breach of contract claim for failing to apply agreed disciplinary or dismissal procedures, often involving notice pay or procedural rights set out in the contract.
Constructive Dismissal
In some cases, an employer's refusal or persistent failure to follow fair disciplinary procedures may contribute to a constructive dismissal claim. Constructive dismissal arises where an employer's conduct amounts to a fundamental breach of the implied term of mutual trust and confidence, leading the employee to resign and treat the contract as terminated. While the threshold is high, egregious procedural failings may form part of the evidence supporting such a claim.
Impact on Discrimination and Other Claims
Failing to follow procedures can exacerbate claims for discrimination or other statutory rights if the disciplinary process is biased, inconsistent, or disproportionately affects employees with protected characteristics. Discrimination claims are separate from unfair dismissal and can attract uncapped compensation if successful.
Practical Consequences for Employers and Employees
For Employers
Employers risk:
- Tribunal findings of unfair dismissal.
- Increased compensation awards due to Code uplifts.
- Contractual claims for wrongful dismissal.
- Reputational damage and loss of employee trust.
Employers should train managers on fair disciplinary practices, document investigations, and ensure procedures are clear and followed consistently.
For Employees
Employees concerned that an employer has not followed fair procedures may consider:
- Raising an internal grievance under the employer's policy.
- Contacting Acas early for Early Conciliation before making a tribunal claim.
- Seeking legal advice to clarify rights and options, including time limits.
In unfair dismissal and discrimination claims, employees must normally have the required qualifying service (typically two years) to bring a claim, unless the dismissal involves automatically unfair grounds such as discrimination or whistleblowing. These exceptions have different qualifying criteria.
Employment tribunal claims generally must be lodged within three months less one day from the date of dismissal or last act complained of.
Common Questions
Does failure to follow the Acas Code automatically make a dismissal unfair?
No. Not following the Code does not automatically make a dismissal unfair. However, tribunals must consider the Code when deciding fairness and may increase awards for unreasonable failure.
Can an employee with less than two years' service claim unfair dismissal?
Typically no, except in cases involving automatically unfair dismissal grounds such as discrimination, whistleblowing, or breaches of statutory rights.
What practical steps can an employee take if procedures were not followed?
Employees should consider internal grievance procedures, Acas Early Conciliation, and seeking legal advice well before tribunal deadlines.
Key Takeaways
When employers fail to follow fair disciplinary procedures in England and Wales, the legal consequences can be significant. The Acas Code of Practice provides clear expectations for fair process, and tribunals will consider compliance when resolving disputes. Failure to follow procedures can lead to claims for unfair dismissal, contractual breach, compensation uplifts, and heightened risk of discrimination claims. Both employers and employees benefit from understanding these rights and obligations, engaging with procedures fairly, and acting within statutory time limits.
