In the UK, the fairness of disciplinary procedures is scrutinised closely by employment tribunals, particularly regarding how much notice an employee receives before a disciplinary hearing.
An inadequate notice period can undermine the fairness of the entire process, potentially resulting in claims of unfair dismissal or discrimination.
This guide outlines the legal standards, recommended practices, and case law relevant to disciplinary hearing notice periods, ensuring employers stay compliant while supporting a fair workplace.
Downloadable 'Invitation to Disciplinary Hearing' Template
For a smooth and compliant disciplinary process, use our downloadable Invitation to Disciplinary Hearing Template. This template ensures you cover all essential details, providing clear, structured communication to employees about their hearing, and helping you meet procedural fairness standards.
Legal Framework and Standards
Employment Rights Act 1996
The Employment Rights Act 1996 underscores an employee’s right to fair treatment in the workplace.
Although it does not prescribe specific notice periods, the Act emphasises that dismissals should be handled fairly.
When insufficient notice is provided, it may breach the Act’s provisions on fair procedures.
ACAS Code of Practice on Disciplinary and Grievance Procedures
The ACAS Code of Practice remains a cornerstone of disciplinary fairness, advising that employees should receive “reasonable” notice to prepare for hearings.
The ACAS Code highlights several principles:
- Clarity: The employee should be given clear information about the allegations.
- Time: Sufficient time to gather evidence, review case details, and consult with representation if necessary.
- Process Consistency: Consistent application of notice periods across similar cases demonstrates fairness.
Non-compliance with the ACAS Code is often considered in tribunal cases, potentially resulting in increased compensation awards if the employer is found to be at fault.
Human Rights Act 1998
In certain circumstances, particularly where public sector employees are concerned, the Human Rights Act requires disciplinary processes to meet standards of procedural fairness under Article 6 (the right to a fair trial).
This can indirectly influence the length and conditions of notice for hearings.
Factors That Determine Notice Periods
Employers should tailor notice periods based on specific factors, which may include:
Severity of Allegations
Minor Misconduct (e.g., attendance issues) may justify a shorter notice period, though at least 48 hours is recommended to allow for basic preparation.
Gross Misconduct (e.g., theft, violence) often necessitates a longer notice period (5+ days), reflecting the serious consequences of potential dismissal.
Employee’s Length of Service and Position
Long-tenured Employees may require longer notice as a mark of respect for their service and to review any complex case history.
Role Complexity: Employees in senior positions or complex roles may also require extended notice to adequately gather evidence.
Complexity of Evidence
Volume and Technical Nature: If the evidence involves detailed records, multiple documents, or requires consultation with experts, longer notice is often necessary.
Number of Witnesses: Cases involving multiple witness statements may need additional preparation time for employees to understand and challenge the allegations.
In-Depth Case Law Analysis
Case law reveals how tribunals interpret fair notice periods, illustrating when adjustments may be necessary.
Case Example 1: The Right to Reasonable Notice (Thompson v. London Central Bus Company Ltd [2015])
In this case, Thompson was given only 24 hours’ notice for a gross misconduct hearing involving serious allegations.
The tribunal ruled the dismissal unfair, concluding that 24 hours did not allow reasonable preparation time, especially for such a severe allegation.
This case underscores that tribunals typically view 24 hours as insufficient, particularly in complex or severe cases.
Case Example 2: Adequate Preparation Time for Complex Cases (Smith v. British Waterways Board [2015])
Smith was provided a five-day notice period for a disciplinary hearing involving multiple allegations.
The Employment Appeal Tribunal (EAT) found this notice period to be reasonable, given the complexity of the case and the volume of evidence.
The tribunal highlighted that providing five days allowed Smith adequate time to gather evidence and prepare a defence, reinforcing the importance of longer notice periods for complex or multifaceted cases.
These cases illustrate that while 24 hours is rarely sufficient for a disciplinary hearing, a five-day period may be considered reasonable for more serious allegations.
Notice Period Recommendations and Best Practices
Recommended Notice Periods by Type of Misconduct
- Minor Misconduct: 48 hours to 3 days, depending on case complexity.
- Serious or Gross Misconduct: Minimum of 5+ working days, allowing for due consideration and preparation.
Best Practice Tips:
- Include Notice Requirements in Contracts
Stating a standard notice period for hearings in employment contracts or the company handbook sets clear expectations.
- Communicate Clearly
Provide all allegations and relevant documentation with the notice to avoid potential claims of withheld evidence.
- Respond to Employee Requests
If the employee requests additional time, consider it unless there is an urgent business reason not to.
- Avoid Short Notice in Complex Cases
Providing only 48 hours for complex cases, regardless of the severity, is generally seen as inadequate. Aim for 3-7 days.
Examples of Notice Periods by Scenario
Here are examples illustrating fair notice periods across different types of cases:
Example 1: Tardiness or Attendance Issues
Notice Period: 48 hours.
Rationale: Minor misconduct with straightforward evidence.
Example 2: Repeated Poor Performance
Notice Period: 3-5 days.
Rationale: Sufficient time to review records and consult support if necessary.
Example 3: Allegation of Harassment (Gross Misconduct)
Notice Period: Minimum of 5 days, ideally up to 7.
Rationale: Serious allegation requiring in-depth preparation, access to representation, and fair response time.
Legal Risks of Insufficient Notice
Failing to provide a fair notice period can expose employers to legal and reputational risks, including:
Unfair Dismissal Claims
Tribunals often view insufficient notice as a lack of procedural fairness, potentially leading to a claim.
Breach of ACAS Code
Non-compliance with the Code can increase compensation awards by up to 25%.
Potential Discrimination Claims
If inadequate notice appears to target a particular employee unfairly (e.g., singling out a long-serving employee), this could lead to claims of discrimination.
Documenting all steps is essential for defence in tribunal cases.
Employers should keep records of all communications, including reasons for chosen notice periods and any extensions offered to the employee.
Conclusion
Setting a fair notice period is a critical component of the disciplinary process, especially in today’s regulatory climate.
While there’s no single rule, understanding how tribunals evaluate fairness, the guidelines in the ACAS Code, and adapting notice periods based on case complexity, role, and allegations can help prevent legal disputes.
Employers should consider 48 hours a minimum for minor cases and plan for 5 to 7 days for more severe or complex cases.
By doing so, they not only comply with UK law but also reinforce a fair, transparent workplace culture.
