Why Employers should Ensure a Fair Disciplinary Process is followed

Procedure is the key to successfully defending a claim for unfair dismissal

If an employer has concerns regarding an employee’s behaviour and/or conduct at work, they may consider taking disciplinary action in order to address those concerns. It is extremely important that an employer follows a fair process in relation to any disciplinary process.

Before Commencing a Formal Process

Prior to commencing a formal process, an employer should consider whether the issue could be dealt with informally.

Misconduct issues can sometimes be addressed informally if the concern is not very serious and/or is the first incident involving the employee.

If the misconduct issue cannot be addressed informally, or has previously been addressed informally, formal disciplinary action may be required.

Why is the process important?

Following a fair process is important for a number of reasons:

1. Communication

It ensures that the standards of behaviour an employer expects from their employee(s) is communicated effectively.

The process will help employers demonstrate to other staff, who may have been impacted by the behaviour, that they do not tolerate the behaviour which will ensure staff feel safe, heard and supported. This will ensure that trust and confidence is maintained with all staff.

2. Reduces the risk of a Claim

Following a fair process reduces the risk of a claim (a process cannot prevent a claim from being pursued), and if a claim is pursued by an employee, a fair process is the best way to successfully defend a claim.

An employee with 2 years’ continuous employment, can pursue a claim for unfair dismissal, and there have been instances where an employee has been found to have been unfairly dismissed, due to the employer failing to follow a fair process. This is what is commonly referred to within the Employment Tribunal as a procedurally unfair dismissal.

In this scenario, an employer can sometimes demonstrate that the employee would have been dismissed, if a fair procedure had been followed i.e. the outcome would have been exactly the same, and this is a valid argument which can reduce the former employee’s compensation. However, the employer would still have a public judgement confirming that an employee had been unfairly dismissed.

Many employers consider that a formal process can be dispensed with if the employee has less than 2 years’ employment, and whilst this is understandable, myself and the rest of the team frequently find that employees are raising other concerns, such as whistleblowing and discrimination (which do not require 2 years’ continuous service). In the circumstances, I therefore recommend that a process is followed to enable the employer to demonstrate the actual reason for outcome of the disciplinary process.

In addition, the Employment Rights Act 2025 will remove the 2-year service rule at some point in 2026 (probably October 2026). This will mean employees will not need 2 years’ service to be able to claim unfair dismissal and a fair process will need to be followed regardless of length of service.

Fair and Equal Treatment

In theory, following a fair process will ensure that staff are treated equally. The idea being that offences of a similar nature are dealt with in a consistent manner, whilst disciplinary proceedings are meant to be kept confidential, I often receive enquiries from employees who feel they have been given a harsher sanction than another colleague in a similar situation.

In my experience, this is where additional claims (other than unfair dismissal) are often pursued such as, discrimination, harassment, and victimisation claims. This is on the basis the employee feels they have been treated less favourably and/or harassed because of a protected characteristic and/or victimised for raising a grievance.

Consistency with the way in which misconduct issues are dealt with, will minimise the risk of a claim, and again, ensure defending a claim is easier.

ACAS Code of Practice on Disciplinary and Grievance Procedures

When determining whether a fair process has been followed, the Employment Tribunal will refer to the ACAS Code of Practice on Disciplinary and Grievance procedures. Any internal disciplinary procedure should be drafted in line with the ACAS Code of Practice.

Please note, if an employer fails to follow the ACAS Code of Practice, the Tribunal can award an uplift of up to 25% on top of any compensation awarded.

If you would like any assistance with an ongoing disciplinary matter, would like us to review your handbook policies, or provide training to your managers on the disciplinary process please do not hesitate to contact us on 01983 897003.