Dismissals Disciplinaries and Probation: A Practical Guide for Employers

Dismissals and disciplinary issues are among the most common and difficult workplace problems employers face. Whether an employer is dealing with misconduct, poor performance, absence, attitude concerns, a failed probationary period or a breakdown in trust, the decision to dismiss should not be rushed. 

For employers, this is not simply an HR issue. It involves legal risk, management judgment, employee relations and commercial decision-making. If handled incorrectly, dismissals can lead to grievances, Acas Early Conciliation, employment tribunal claims, management time, legal costs and reputational damage. 

This is also a particularly important time for employers to review their approach. Acas helpline data for October to December 2025 shows that discipline, dismissal and grievance was the most common call topic, accounting for around 41% of helpline calls. (Acas helpline statistics) In addition, from 1 January 2027, unfair dismissal protection is due to apply after six months’ service, rather than two years, and the cap on compensatory awards is due to be removed. (Acas Employment Rights Act 2025) 

This article considers the key issues employers should be aware of when managing dismissals, disciplinary processes and probationary periods. 

Why Should Employers Take Dismissal Procedures Seriously? 

There are several reasons employers should take dismissal procedures seriously. 

First, there is the legal risk. Even where an employer has a genuine concern about an employee’s conduct or performance, a dismissal can still be unfair if the employer does not follow a fair procedure. Acas guidance states that, for a dismissal to be fair, an employer should have a valid reason, make a decision that is balanced and consistent, and usually follow a full and fair procedure. 

Secondly, there is the financial risk. If the Acas Code of Practice on disciplinary and grievance procedures applies, an employment tribunal can increase compensation by up to 25% where an employer has unreasonably failed to comply with the Code. 

Thirdly, there is the management risk. Poorly handled dismissals often escalate. An employee who may have accepted a fair and well-managed process may instead raise a grievance, submit a subject access request, contact Acas or bring a tribunal claim if they feel they have been treated unfairly. 

What Is a Fair Dismissal Process? 

A fair dismissal process will depend on the circumstances, but most disciplinary or performance-related dismissals should involve a number of key steps. 

Employers should usually: 

• identify the issue clearly; 

• investigate the facts; 

• tell the employee the allegations or concerns in writing; 

• provide relevant evidence; 

• invite the employee to a disciplinary or capability meeting; 

• allow the employee to be accompanied where appropriate; 

• give the employee a proper opportunity to respond to the reason for dismissal; 

• consider the employee’s explanation before making a decision; 

• decide on an outcome that is reasonable and proportionate; 

• confirm the decision in writing; 

• offer a right of appeal. 

The key point for employers is that the process should not be predetermined. Managers should approach the issue with an open mind and should not decide the outcome before hearing from the employee. 

Misconduct and Gross Misconduct 

Misconduct issues may include poor behaviour, failure to follow instructions, breach of policy, inappropriate communications, timekeeping problems, unauthorised absence or failure to meet workplace standards. 

Gross misconduct is more serious. It may include theft, violence, serious insubordination, fraud, serious breach of confidentiality, serious harassment, serious health and safety breaches or other conduct that fundamentally undermines the employment relationship. 

However, employers should be careful before labelling conduct as gross misconduct. Not every serious issue justifies summary dismissal. Employers should consider the facts, the employee’s explanation, length of service, previous record, consistency with previous cases, any mitigation and whether dismissal falls within the range of reasonable responses. 

Before dismissing an employee for gross misconduct, employers should usually ask: 

• what exactly is alleged? 

• what evidence supports the allegation? 

• has there been a proper investigation? 

• has the employee had a fair opportunity to respond? 

• are there any mitigating circumstances? 

• is summary dismissal genuinely reasonable? 

Employers who dismiss too quickly may expose themselves to unnecessary risk, even where there is a genuine conduct concern regarding the probationary period.  

Poor Performance and Capability 

Poor performance should usually be managed differently from misconduct, especially during the probation period. 

In many cases, the issue is not that the employee has deliberately done something wrong, but that they are not meeting the required standard. That may require clearer expectations, training, supervision, performance targets, review meetings and warnings before dismissal is considered. 

Employers should be clear about: 

• what standard is expected; 

• how the employee is falling short; 

• what improvement is required; 

• what support will be provided; 

• how improvement will be measured; 

• the timescale for improvement; 

• what may happen if improvement is not achieved. 

A common mistake is moving straight to dismissal without giving the employee a fair opportunity to improve. This is particularly risky where the employee has not previously been told that their performance may put their employment at risk. Where performance issues may be linked to health, disability, neurodiversity, pregnancy, caring responsibilities or workplace stress, employers should be particularly careful. 

Probationary Periods 

Probationary periods are often misunderstood. 

A probationary period can be useful because it gives both employer and employee an early opportunity to assess whether the role is working. However, it does not mean that an employer can dismiss without any process. 

The legal risk during probation may currently be lower in many ordinary unfair dismissal cases where the employee has less than two years’ service. However, that does not remove all risk. Employees may still bring claims relating to discrimination, whistleblowing, automatic unfair dismissal, unlawful deduction from wages, notice pay, holiday pay or breach of contract. 

The risk will also increase from 1 January 2027, when unfair dismissal protection is due to apply after six months’ service. This means employers should start treating probationary period management as a more important contractual compliance issue now. 

Employers should consider: 

• whether the employment contract contains a clear probationary period clause; 

• whether the employer has the right to extend probation; 

• whether shorter notice applies during probation; 

• whether probation review meetings are taking place; 

• whether concerns are documented; 

• whether the employee has been told what needs to improve; 

• whether dismissal during or at the end of probation is being handled fairly. 

A well-managed probation process can reduce the risk of disputes and make any eventual dismissal easier to justify. 

Managing the Disciplinary Process 

A fair disciplinary process usually begins with a fair investigation. The purpose of the investigation is to establish the facts, not to prove the employee guilty. 

Depending on the circumstances, an investigation may involve reviewing documents, emails, messages, system records, witness evidence, CCTV, policies or previous warnings. Employers should consider evidence that supports the allegation and evidence that may support the employee’s position. 

If the matter proceeds to a disciplinary hearing, the employee should usually be given written details of the allegations, copies of relevant evidence, reasonable time to prepare, details of the possible outcomes and confirmation of the right to be accompanied. 

At the hearing, the employer should explain the allegations, go through the evidence and allow the employee a proper opportunity to respond. The employer should then adjourn before making a decision. This helps demonstrate that the decision was not predetermined. 

Employers should usually offer a right of appeal. An appeal gives the employer an opportunity to correct mistakes before the matter escalates. Where possible, the appeal should be heard by someone who was not involved in the original decision and who has authority to change the outcome. 

Grievances Raised During a Disciplinary Process 

Employers often struggle where an employee raises a grievance during a disciplinary or dismissal process. 

The correct approach will depend on the circumstances. Sometimes the grievance can be dealt with alongside the disciplinary process. Sometimes the disciplinary process may need to be paused while the grievance is investigated. In other cases, the grievance may be closely connected to the disciplinary issues and can be considered as part of the overall decision-making process. 

Employers should consider: 

• what the grievance is about; 

• whether it relates directly to the disciplinary allegations; 

• whether it raises discrimination, whistleblowing or victimisation issues; 

• whether further investigation is required; 

• whether the timetable should be adjusted. 

A grievance should not automatically derail a disciplinary process, but it should not be ignored. 

Common Mistakes Employers Make 

Employers should be particularly careful to avoid the following mistakes: 

• deciding to dismiss before the process has started; 

• failing to investigate properly; 

• not putting allegations in writing; 

• failing to provide evidence before the disciplinary hearing; 

• giving the employee insufficient time to prepare; 

• treating probationary employees as having no rights; 

• failing to document probation concerns; 

• dismissing for poor performance without warnings or support; 

• labelling conduct as gross misconduct too quickly; 

• ignoring possible discrimination, whistleblowing or health issues; 

• failing to offer an appeal; 

• using outdated disciplinary or capability procedures; 

• failing to train managers. 

Many dismissal claims arise not because the employer had no concern, but because the concern was handled too quickly, too informally or without proper evidence. 

Practical Steps for Employers 

Employers should consider taking the following steps now: 

1. Review disciplinary and capability policies. 

2. Review probationary period clauses in employment contracts. 

3. Introduce clear probation review templates. 

4. Train managers on how to handle misconduct and performance concerns. 

5. Make sure allegations are put in writing before disciplinary hearings. 

6. Ensure employees are given evidence and reasonable time to prepare. 

7. Keep proper notes of investigation meetings, disciplinary hearings and appeal hearings. 

8. Check whether dismissal decisions are consistent with previous cases. 

9. Take advice before dismissing employees with possible discrimination, whistleblowing or health-related issues. 

10. Prepare for the reduction in the unfair dismissal qualifying period from January 2027. 

Taking these steps can reduce legal risk and help employers deal with workplace issues more confidently. 

Sonuç 

Dismissals, disciplinaries and probationary periods are issues employers cannot afford to handle casually, especially when considering the reasons for dismissal. Handled poorly, they can lead to grievances, Acas Early Conciliation, unfair dismissal claims, discrimination claims and avoidable management disruption. Handled properly, they allow employers to address workplace problems fairly, consistently and commercially. 

The key for employers is to act early, avoid assumptions and follow a fair process. This will become even more important as unfair dismissal protection is due to apply after six months’ service from 1 January 2027. 

At Ronald Fletcher Baker, our Employment Team advises employers on dismissals, disciplinary procedures, probationary periods, grievances, performance management and employment tribunal claims. If you require advice on managing a dismissal or reviewing your disciplinary and probation processes, we can help you assess the risks and identify a practical way forward.