I wonder what happens if I don't follow a fair disciplinary procedure?

For many UK employers, disciplinary issues are a routine part of business. From poor performance to absenteeism, procedures are often overlooked or neglected, leading to legal challenges that could have been avoided with proper attention, and can all turn a manageable concern into a costly legal headache. But how much risk does a flawed process create?

Recent figures show that unfair dismissal remains one of the most common and costly risks for employers, making up almost a quarter of all employment tribunal claims. With average awards running into the tens of thousands, and the upper limit for compensatory awards now exceeding £118,000, a flawed disciplinary process can quickly become an expensive mistake.

This article explores why a fair process matters under UK employment law, what can go wrong when employers cut corners, and the pitfalls we see most often in practice, along with achievable steps to avoid them.

Why following a fair disciplinary procedure matters

A fair disciplinary procedure isn’t just an HR preference; it’s a legal expectation. The ACAS Code of Practice on Disciplinary and Grievance Procedures (the Code) sets the minimum standard of fairness that employment tribunals expect. Failure to follow the Code can make a bad situation significantly worse.

When followed currently, a fair process helps employers:

• Reach well-reasoned, evidence-based decisions.
• Give employees a meaningful opportunity to respond.
• Reduce the risk of unfair dismissal, discrimination, or whistle-blowing claims.
• Demonstrate professionalism, consistency, and organisational integrity.

Even where misconduct seems obvious, skipping key steps in a disciplinary procedure can turn a fair reason for dismissal into unfair dismissal in the eyes of a tribunal.

The risks of not following a fair procedure

• Unfair dismissal claims: Employees with over two years’ service can bring a claim for Unfair Dismissal. Tribunals expect a proper investigation, a fair hearing, and an opportunity to appeal. If any of these steps are missing or handled poorly, the dismissal may be ruled procedurally unfair.
   
• Uplifts in compensation: If an employer unreasonably fails to follow the Code, tribunals can increase compensation by up to 25%. This uplift can transform a modest award into a significant financial liability.
   
• Discrimination and victimisation claims: Skipping due process can create or exacerbate allegations of bias, particularly where protected characteristics are in play. These claims have no cap on compensation and often attract reputational harm far beyond the direct financial loss.
   
• Reputational and cultural damage: How an organisation handles discipline affects workforce trust and morale. Rushed or inconsistent processes can undermine confidence and fuel grievances.

Common pitfalls and how to avoid them

• Failing to investigate properly: Acting too quickly and failing to investigate all the facts are common grounds for Unfair Dismissal claims. This can be avoided by appointing an impartial investigator, gathering all relevant evidence such as documents, CCTV footage, and witness statements, and ensuring that the investigation remains a fact-finding exercise rather than an urgent decision-making one.
   
• Using the same manager for every stage: One person handling investigation, decision, and appeal risks bias and could be grounds for an Unfair Dismissal claim. You can avoid this issue by splitting the roles across different managers wherever possible, and if that isn’t feasible in a smaller organisation, putting safeguards in place such as involving external HR support or arranging a board-level review.
   
• Not providing adequate information: Employees must understand the case against them to prepare a proper response. You can avoid this by providing the employee with all the evidence you intend to rely on, setting out the allegations clearly and in writing, and allowing them reasonable time to prepare for the disciplinary hearing. This is normally 5 working days.
   
• Pre-judging the outcome: If the decision appears predetermined, tribunals may view the process as unfair regardless of the evidence. You can avoid this by clearly documenting how the evidence was considered, and demonstrating that it was solely the evidence produced that influenced the final decision. Outsourcing the investigation to an external HR Manager will also alleviate this risk.
   
• Skipping or limiting the appeal stage: A weak or absent appeal process increases legal risk and undermines the fairness of the procedure. You can avoid this by offering a genuine appeal hearing, ensuring it is conducted by someone who was not previously involved in the case, and considering whether the original investigation needs to be revisited.

Conclusion

Failing to follow a fair disciplinary procedure is more than a technical HR error; it invites legal claims, higher compensation awards and organisational disruption. Fairness doesn’t require perfection, but it does require structure, consistency, and careful decision-making.

By conducting thorough investigations, holding balanced hearings, making evidence-based decisions and offering meaningful appeals, employers protect both their organisation and their workforce. Also making sure your disciplinary procedures are up to date and compliant reduces these risks, and ensures your business is prepared for any disciplinary issues. Asking, “Are we following a fair disciplinary process?” is not a sign of caution, it’s a hallmark of responsible, forward-thinking leadership.

Further Advice

If you have any queries on this topic or any other employment-related matters, our Peace of Mind Team is here to provide expert guidance. Our Document Audit Team can also assist in drafting relevant workplace policies.

Contact our Employment Team by emailing employment@warnergoodman.co.uk or calling 02380 717 717.

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