Unfair Dismissal, Misconduct and Procedural Fairness

A detailed study guide to misconduct as a potentially fair reason for dismissal, procedural and substantive fairness, proportionality, and the importance of applying a fair process.

AC 3.1 asks you to explain, with reference to unfair-dismissal principles, whether dismissal for misconduct could be appropriate in the Jim and Tola situation. This is a legal employee-relations criterion, so the reasoning needs to distinguish a potentially fair reason for dismissal from the separate question of whether dismissal would actually be fair and reasonable in the circumstances.

The supplied guidance specifically directs attention to the Employment Rights Act 1996, the Acas Code of Practice on Disciplinary and Grievance Procedures, procedural fairness, reasonableness and proportionality.

Under section 98 of the Employment Rights Act 1996, an employer must establish the reason for dismissal and show that it falls within a potentially fair category, or amounts to some other substantial reason. Conduct is one of the statutory potentially fair reasons.

Identifying a potentially fair reason is only the first stage. The fairness of using dismissal for that reason must still be considered in the circumstances.

The supplied assessment guidance treats arguing or talking over colleagues as minor misconduct at most rather than gross misconduct and stresses that proportionality matters. It therefore directs learners to question whether dismissal would be too severe for the conduct described.

This is the framing of the learning material. A real disciplinary decision would still require investigation of the actual facts and the employer’s policies rather than relying on the brief description alone.

Tola says that Jim constantly talks over her in meetings. Jim says that Tola undermines him in meetings. Their relationship has deteriorated and is beginning to affect their ability to collaborate when preparing tenders.

These facts show a genuine management problem, but the case does not state that either employee has committed violence, fraud, theft or another obvious example of gross misconduct. Nor does it establish, without investigation, whose account is correct.

Substantive fairness concerns the reason for dismissal and whether dismissal is a reasonable response to the circumstances established. In a misconduct case, this requires attention to what actually happened and how serious it was.

For Jim and Tola, the relevant questions include the nature of the behaviour, its impact, whether it has happened repeatedly, what standards were communicated and whether less severe interventions could reasonably address the problem.

Procedural fairness concerns how the employer reaches its decision. Even where there is a potentially valid conduct concern, an employer should not jump directly from allegation to dismissal.

Acas states that employers should follow a full and fair procedure for conduct dismissals. The process protects both the employee and the organisation by allowing evidence to be gathered and the employee to respond.

A fair disciplinary process requires the employer to establish the facts. This is particularly important where two employees give competing accounts of the same working relationship.

Iman would need to understand what has happened in meetings rather than simply choose between Jim’s and Tola’s claims. Relevant evidence could include accounts from those involved, witnesses and any other material reasonably available.

A disciplinary outcome should be proportionate to the seriousness of the conduct. Acas guidance indicates that relatively small or less serious misconduct may be addressed through informal discussion or warnings, while dismissal becomes relevant in more serious circumstances or after repeated disciplinary problems.

The supplied guide therefore encourages consideration of whether dismissal would be an excessive response to the interpersonal behaviour described.

For misconduct that is not sufficiently serious to justify immediate dismissal, disciplinary systems commonly use escalating responses. Acas guidance recognises written and final written warnings, with dismissal potentially following where further misconduct occurs after appropriate warning.

The precise response depends on the facts and organisational policy, but this illustrates why dismissal should not automatically be treated as the starting point for every conduct problem.

Current Acas guidance on conduct issues states that employers should try to resolve problems informally where appropriate and that dismissal should be a last resort. Serious or gross misconduct may require immediate formal disciplinary action, but a fair procedure remains necessary.

This principle is highly relevant where the core problem is an interpersonal working relationship that may still be capable of improvement.

The supplied guidance specifically suggests considering alternatives such as mediation before moving to dismissal. This links AC 3.1 with the dispute-resolution concepts explored in AC 2.3.

Where the main objective is restoring a productive working relationship, mediation or a facilitated conversation may address the underlying interaction more directly than simply removing one of the employees.

Considering mediation or an informal intervention does not require management to overlook inappropriate conduct. Expectations about respectful meeting behaviour can still be made clear, and formal action may become necessary if behaviour is serious or persists.

The important point is to match the intervention to the evidence and seriousness of the problem.

For study purposes, Jim’s alleged behaviour should be analysed as an allegation rather than an established fact. Tola says he talks over her, but AnchorBridge would need to establish what occurred, how serious or persistent it was and whether it breached expected standards.

The supplied guidance does not characterise the stated behaviour as gross misconduct, so the proportionality of dismissal requires particularly careful examination.

The same approach applies to Tola. Jim says she undermines him in meetings, but the case does not establish precisely what that means or prove misconduct. An investigation would be necessary before a disciplinary conclusion could fairly be reached.

Neither employee should simply be dismissed to remove the relationship problem without individual consideration of the evidence and circumstances.

Current Acas guidance states that ordinary unfair-dismissal protection generally requires two years’ service at present, while noting that legislation is scheduled to reduce the qualifying period to six months from January 2027. The case study does not state Jim’s or Tola’s length of service.

This is an important research point: learners should use law and guidance that are current for the relevant assessment context and avoid inventing facts that the case does not provide.

Acas has consulted on a revised disciplinary and grievance Code during 2026, but the published replacement is still a draft at the time this resource was prepared. The existing statutory Code therefore remains the appropriate current reference unless and until the replacement takes effect.

This distinction matters when researching fast-changing employment law: consultation material should not be presented as if it were already operative law.

A strong explanation separates the stages of legal reasoning: identify misconduct as a potentially fair reason, examine the seriousness of the alleged conduct, explain substantive and procedural fairness, consider reasonableness and proportionality, and then apply those principles separately to Jim and Tola.

It also explains why alternatives such as mediation or proportionate disciplinary action matter in this particular relationship conflict rather than jumping straight to dismissal.

Continue through the individual 5HR01 assessment criterion study guides.