Before you dismiss someone: the records a tribunal will expect you to have

When a dismissed employee brings an unfair dismissal claim, the employment tribunal does not ask whether it would have dismissed. It asks whether the employer had a fair reason, and whether it acted reasonably in treating that reason as enough to dismiss, which in practice means following a fair procedure. Both questions are answered largely from documents. If a step is not written down, expect to have to persuade a judge that it happened.

Start with the reason

The law recognises five potentially fair reasons for dismissal: conduct, capability (including ill health and poor performance), redundancy, a legal restriction that stops the person doing the job, and ‘some other substantial reason’. Decide which one applies before anything else, because each brings its own process. A conduct dismissal needs an investigation. A capability dismissal usually needs warnings, support and a fair chance to improve. A redundancy needs a fair selection pool and genuine consultation. Changing the label after a claim arrives undermines the whole defence.

Who can bring a claim is also changing. The Employment Rights Act 2025 alters the qualifying period for ordinary unfair dismissal, and its reforms are being brought in by stages. Check the position at the date of dismissal, and remember that some dismissals, such as those connected with whistleblowing or pregnancy, are automatically unfair whatever the employee’s length of service.

The ACAS Code and the documents that show you followed it

For conduct and performance cases, the ACAS Code of Practice on disciplinary and grievance procedures sets the baseline. A tribunal must take it into account, and where an employer has unreasonably failed to follow it, compensation can be increased by up to 25%. The file that shows compliance usually contains:

• The relevant policy, and evidence that the employee could see it.

• Investigation notes: who was spoken to, when, and what they said, ideally signed or confirmed by email.

• The invitation letter: the allegations in enough detail to answer, copies of the evidence, the date and time of the meeting, the possible outcome, and the right to be accompanied.

• Notes of the disciplinary meeting, taken by someone other than the person chairing it, and sent to the employee afterwards.

• The outcome letter, giving the decision, the reasons for it, the sanction and the right of appeal, with a deadline.

• The appeal papers: the employee’s appeal letter, notes of the appeal hearing and the appeal outcome, decided where possible by someone not previously involved.

• Any earlier warnings relied on, with their dates and confirmation that they were still live at the time.

“If a step is not written down, expect to have to persuade a judge that it happened.”

Accompaniment, appeals and the small company problem

Workers have a statutory right to be accompanied at a disciplinary or grievance hearing by a colleague or a trade union representative. Refusing a reasonable request, or refusing to move the meeting by up to five working days so the chosen companion can attend, is a separate breach that can be claimed on its own. Record the offer, the employee’s answer and any rescheduling.

In a small company the same manager often investigates, decides and hears the appeal. Tribunals allow for size and resources, but still expect a fair hearing. A director who has stayed out of the matter, or an outside HR adviser, can hear the appeal.

Build the file as you go, not after a claim arrives. Notes written months later carry far less weight than notes made on the day. Amara and Hana advise employers on dismissals and on defending tribunal claims.