When Is a Dismissal Decision Procedurally Unfair?

In UK unfair dismissal law, an Employment Tribunal will assess not only whether an employer had a potentially fair reason for dismissal, but also whether the procedure used to reach the decision was fair. This is known as procedural fairness.

A dismissal can be found unfair even where the employer had a valid reason, if the decision-making process was flawed. Procedural fairness is a core requirement under the Employment Rights Act 1996 and is heavily influenced by the ACAS Code of Practice on Disciplinary and Grievance Procedures.

What Is Procedural Unfairness in Dismissal?

A dismissal decision is procedurally unfair when the employer fails to follow a fair and reasonable process before deciding to dismiss an employee.

The legal test considers whether the employer acted within the range of reasonable responses, taking into account:

• The seriousness of the allegations or reasons for dismissal
• The steps taken to investigate and consider evidence
• Whether the employee had a fair opportunity to respond
• Whether established procedures were followed

Procedural fairness is assessed separately from the reason for dismissal itself.

Legal Framework for Procedural Fairness

Under section 98(4) of the Employment Rights Act 1996, fairness depends on whether the employer acted reasonably in all circumstances.

Key sources of guidance include:

• ACAS Code of Practice on Disciplinary and Grievance Procedures
• Established case law principles on fair hearings and investigations
• Internal employer policies and contractual procedures

Employment Tribunals may adjust compensation by up to 25% where the ACAS Code is not followed.

When a Dismissal Decision Becomes Procedurally Unfair

1. Failure to Conduct a Proper Investigation

A dismissal decision is often procedurally unfair where there is no reasonable investigation into the facts.

Common issues include:

• No evidence gathered before dismissal
• Key witnesses not interviewed
• Relevant documents ignored
• Decision based on assumptions rather than facts

A reasonable employer is expected to carry out a sufficient inquiry before deciding on dismissal.

2. Lack of a Fair Disciplinary Hearing

Procedural fairness generally requires a disciplinary hearing before dismissal (unless exceptional circumstances apply). Unfairness may arise where:

• No hearing is held at all
• The employee is not informed of the allegations
• The employee is not given time to prepare
• The hearing is a mere formality with a predetermined outcome

The hearing must allow meaningful participation, not just procedural appearance.

3. Failure to Inform the Employee of the Case Against Them

A dismissal decision is procedurally unfair if the employee is not properly informed of:

• The specific allegations
• The evidence relied upon
• The potential consequences (including dismissal)

Without clear information, the employee cannot reasonably defend themselves.

4. Denial of the Right to Respond

Procedural fairness requires that employees are given a genuine opportunity to respond.

Unfairness may arise where:

• The employee is not allowed to explain their version of events
• Exculpatory evidence is ignored
• Responses are dismissed without consideration
• The employer refuses to engage with explanations

Tribunals place significant weight on whether the employee's case was properly heard.

5. No Right to Be Accompanied

In disciplinary or dismissal meetings, employees usually have the right to be accompanied by:

• A trade union representative
• A workplace colleague

A refusal to allow this right (where applicable) can make the dismissal procedurally unfair.

6. Pre-Determined Decision-Making

A dismissal is procedurally unfair where the outcome is effectively decided before the process begins.

Indicators include:

• Investigation and hearing conducted by the same biased individual
• Evidence of “going through the motions”
• Statements suggesting dismissal was already decided
• Failure to genuinely consider alternatives

The decision-maker must approach the process with an open mind.

7. Failure to Follow Employer's Own Procedures

Employers are generally expected to follow their internal disciplinary policies unless there is a good reason not to.

Unfairness may arise where:

• Mandatory steps in the policy are skipped
• Warning stages are ignored without justification
• Appeal procedures are not offered
• Policy timeframes are not followed without reason

Deviation from procedure can undermine fairness.

8. No Opportunity for Appeal

A fair disciplinary process normally includes a right of appeal. Procedural unfairness may arise where:

• No appeal is offered
• The appeal is a sham or not independently considered
• New evidence is ignored without justification
• The appeal process is conducted by the original decision-maker

Appeal rights are an important safeguard in dismissal decisions.

9. Inadequate Time to Prepare

Procedural fairness may be compromised if the employee is not given sufficient time to:

• Review allegations
• Gather evidence
• Arrange representation
• Prepare for a hearing

Short or unreasonable timeframes can prevent a fair response.

10. Failure to Consider Alternatives to Dismissal

Even where misconduct or performance concerns exist, a fair process should consider alternatives, such as:

• Warnings
• Training or support
• Demotion or redeployment (where appropriate)
• Final written warning

Failure to consider less severe sanctions can make dismissal procedurally unfair.

How Employment Tribunals Assess Procedural Fairness

Tribunals do not expect perfect procedures. Instead, they assess:

• Whether the process was broadly fair and reasonable
• Whether any procedural flaws materially affected the outcome
• Whether the employee suffered prejudice as a result
• Whether the employer acted within the range of reasonable responses

Minor technical errors may not render a dismissal unfair if the overall process was fair.

ACAS Code of Practice and Procedural Fairness

The ACAS Code sets minimum standards for fair disciplinary procedures, including:

• Informing the employee of the issue in writing
• Holding a disciplinary meeting
• Allowing representation
• Providing evidence in advance
• Offering an appeal

Failure to follow the Code does not automatically make a dismissal unfair, but tribunals will take it into account when assessing fairness.

Consequences of Procedural Unfairness

If a tribunal finds procedural unfairness, possible outcomes include:

• A finding of unfair dismissal
• Compensation (basic and compensatory awards)
• Adjustments to compensation for ACAS Code breaches
• Reinstatement or re-engagement in rare cases

Even if the employer had a valid reason, procedural defects alone can justify compensation.

Time Limits for Claims

A claim for unfair dismissal must generally be brought within:

• Three months less one day from the date of dismissal

ACAS Early Conciliation is required before issuing a tribunal claim and may pause limitation periods.

Common Examples of Procedurally Unfair Dismissals

Typical scenarios include:

• Immediate dismissal without investigation
• No disciplinary hearing held
• Employee not told of allegations in advance
• Biased or predetermined decision-maker
• No right of appeal
• Ignoring employee explanations or evidence

These issues often arise in both small and large organisations.

Key Principles

Procedural fairness focuses on how the decision was made, not just whether dismissal was justified. The core requirement is that the employee is given a fair opportunity to understand and respond to allegations before a decision is made.

Key Takeaways

A dismissal decision becomes procedurally unfair when the employer fails to follow a fair and reasonable process. This includes inadequate investigation, lack of a proper hearing, failure to disclose evidence, denial of representation, or ignoring appeal rights.

Employment Tribunals assess whether the overall process was fair and within the range of reasonable responses. Even where dismissal is justified in principle, procedural defects can result in a finding of unfair dismissal and compensation.