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Right to Respond: Must Employers Offer Employees a Chance to Respond in Disciplinary Procedures?

  • mlslegalservices
  • Jul 1
  • 3 min read

In the UK, disciplinary processes are not just about internal company policies, they are shaped by employment law, natural justice, and Acas guidance. A crucial component of any fair disciplinary procedure is the employee’s right to respond. But is it legally required? And what happens if an employer skips this step?


In short: yes, employers should give employees the opportunity to respond before making any disciplinary decision and failure to do so can lead to findings of unfair dismissal, reputational damage, and unnecessary litigation.


The Legal Framework


UK employment law does not dictate every step of a disciplinary process, but it sets strong expectations through a combination of statute, case law, and best practice guidance. The Employment Rights Act 1996 provides that employees with two years’ service have the right not to be unfairly dismissed. A dismissal will only be fair if:

1. There is a fair reason (such as misconduct), and

2. The employer acts reasonably in treating that reason as sufficient to justify dismissal.


“Reasonableness” in this context includes following a fair process. The Acas Code of Practice on Disciplinary and Grievance Procedures, while not legally binding, is considered the gold standard and is often referred to by Employment Tribunals. Non-compliance can lead to increased compensation of up to 25%.


What Does the Acas Code Say?


The Acas Code makes clear that employers should:

• Inform employees of the issues in writing

• Hold a disciplinary hearing where the employee can explain their case

• Allow the employee to be accompanied

• Notify the employee of the decision in writing

• Provide the opportunity to appeal


Central to this is the opportunity to respond. The Code is not prescriptive in every detail, but the principles of fairness and natural justice require that an employee is given a meaningful opportunity to challenge the allegations or explain mitigating circumstances before any disciplinary sanction is imposed.


Case Law: Tribunals Take It Seriously


Case law reinforces the importance of allowing employees to respond. In Polkey v A E Dayton Services Ltd [1987], the House of Lords held that even if a dismissal would have occurred anyway, failure to follow a fair procedure including allowing an employee to respond can render the dismissal unfair.


More recently, Employment Tribunals have consistently found that failing to conduct a hearing or failing to consider the employee’s explanation amounts to procedural unfairness. This is especially relevant in cases of gross misconduct, where dismissal is the likely outcome.


Can Employers Ever Skip the Response Step?


Only in exceptional circumstances. For example, if an employee has absconded or refuses to engage with the process despite repeated invitations, the employer may be able to proceed in their absence but even then, employers are expected to act reasonably and document efforts to engage the employee.


In the vast majority of cases, disciplinary decisions made without input from the employee are vulnerable to legal challenge.


Disciplinary Investigations vs. Hearings


It’s also worth distinguishing between the investigation phase and the disciplinary hearing. During the investigation, the employer gathers facts and may interview the employee. If that investigation leads to formal proceedings, a disciplinary hearing must be arranged and that’s the employee’s key opportunity to respond before any action is taken.


Even if the facts appear clear-cut (e.g., CCTV footage or written confessions), the employee must still be given the chance to respond. Mitigating factors such as personal circumstances, stress, or previous good conduct can affect the outcome and must be considered.


The Role of MLS Legal


At MLS Legal, we help employers ensure their disciplinary processes are legally sound, procedurally fair, and defensible. Whether you’re dealing with a straightforward misconduct issue or a complex workplace investigation, we can assist with:

• Drafting or reviewing disciplinary procedures and policies

• Providing guidance on how and when to conduct hearings

• Advising on how to manage uncooperative employees

• Offering legal representation in tribunal claims

• Delivering training on Acas-compliant practices


Our employment solicitors work with SMEs, HR teams, and internal investigators across the UK to strike the right balance between protecting business interests and complying with employment law.


In the UK, giving employees the opportunity to respond during a disciplinary process is not just a matter of courtesy, it’s a legal and procedural requirement rooted in fairness. Employers who skip this step do so at their peril.


Whether you’re handling a first-time disciplinary matter or a complex gross misconduct allegation, seeking professional legal advice is the best way to avoid missteps. MLS Legal can help you protect your organisation by ensuring that every stage of the disciplinary process is robust, fair, and legally compliant.


 
 
 

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