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One of the most significant, and least discussed, risks for UK employers is not having a fair reason to dismiss, but failing to follow a fair process. Under the Employment Rights Act 1996 and the ACAS Code of Practice, the procedure followed is just as important as the decision itself. This article explains how a fair process works in practice, what the self-assessment requires of employers, and what the consequences are for businesses that fail to engage.

What This Means for UK Employers

Employment lawyers frequently see businesses face costly Employment Tribunal claims not because they did not have a 'fair reason' to dismiss, but because they failed to follow a 'fair process.' The ACAS Code of Practice sets a clear procedural benchmark, and a Tribunal will assess whether it has been met. Even where the underlying reason for dismissal is valid, procedural failures can lead to successful claims and compensatory awards.

The Self-Assessment Quiz

Answer Yes or No to the following questions regarding your most recent or pending dismissal case:

1. Investigation and Evidence

• Have you carried out a necessary investigation to establish the facts before deciding to move to a disciplinary hearing?
• Is the person investigating different from the person who will ultimately make the dismissal decision?
• Have you gathered and documented all physical or digital evidence, including emails, CCTV footage, and witness statements?

2. The ACAS Steps

• Have you notified the employee in writing of the allegations against them and the possible consequences, including dismissal?
• Have you provided the employee with copies of all evidence you intend to rely on in advance of any meeting?
• Have you informed the employee of their statutory right to be accompanied to the disciplinary hearing by a colleague or trade union representative?

3. Warnings and Consistency

• If this is a conduct or performance matter, has the employee already received formal written warnings for similar issues?
• Have you checked that you are treating this employee consistently with how you have treated others in similar circumstances?

4. Documentation and Appeals

• Are there clear, contemporaneous minutes or notes of all meetings held with the employee?
• If dismissal is decided, will you provide the employee with the right to appeal the decision to a more senior manager who has not been involved in the case so far?

Your Risk Profile

Count your 'No' answers to find your result:

0 'No' Answers: Lower Risk, Maintain Excellence

Your process appears to align with the ACAS Code of Practice and standard UK employment law principles.

• Even with a strong process, ensure your staff handbook and disciplinary policies are reviewed annually.
• Consider 'lessons learned' sessions after complex cases to further improve documentation standards.

1 to 3 'No' Answers: Moderate Risk, Fix the Gaps

You have some procedural vulnerabilities that a claimant's solicitor could exploit in a tribunal. A 'procedural unfairness' can lead to a successful claim even if the reason for dismissal was valid.

• Pause the process if it is ongoing.
• Ensure all evidence is shared and the right to be accompanied is granted.
• Address any lack of consistency immediately and seek legal advice if you are unsure how to proceed.

4 or More 'No' Answers: High Risk, Get Advice Now

Your current process is at significant risk of being labelled 'procedurally unfair' by an Employment Tribunal. This could lead to successful claims for unfair dismissal and compensatory awards.

• Do not proceed with the dismissal.
• Seek urgent legal advice to conduct an audit of the file.
• It may be possible to restart the process correctly, or to consider a protected conversation or settlement agreement to mitigate risk.

Why This Matters in Practice

• Procedural Unfairness Risk: A valid reason for dismissal does not protect an employer from an unfair dismissal claim if the process followed was procedurally deficient.
• Evidence Risk: Failing to gather and share all relevant evidence before a disciplinary hearing is a common procedural failure identified in tribunal proceedings.
• Accompaniment Risk: Not informing an employee of their statutory right to be accompanied can, of itself, form the basis of a successful claim.
• Consistency Risk: Treating the same conduct differently across employees undermines the legitimacy of the dismissal decision.
• Appeal Risk: Failing to offer a right of appeal to an uninvolved, more senior manager is a recognised procedural failure under the ACAS Code.

Why Work with a Specialist Employment Lawyer

A specialist employment lawyer can help you avoid costly procedural mistakes:

• Review the dismissal file before any decision is made to identify and correct procedural gaps.
• Advise on whether to restart a flawed process or explore alternative risk mitigation options.
• Draft legally compliant letters, investigation reports, and meeting scripts.
• Provide support throughout the disciplinary and appeal process to ensure ongoing compliance with the ACAS Code of Practice.

Ensuring Your Dismissal Process Is Legally Sound in 2026

Businesses should be aware of the procedural requirements that govern lawful dismissal and begin reviewing their practices now. Ensuring you are ready to follow a fair and documented process is not optional; it is a legal obligation that applies every time you contemplate dismissing an employee.