Your Employer Isn't Following Their Own Procedure in Scotland — What You Can Do About It (2026) | Ark Advocacy

Your Employer Isn't Following Their Own Procedure in Scotland — What You Can Do About It (2026)

Something feels wrong about how this is being handled. Maybe the process moved faster than it should have. Maybe a step was skipped. Maybe what is happening to you does not match what your employer's own policy says should happen. You are not sure whether you are right, but you have a strong feeling that the process is not being followed correctly.

That feeling is worth taking seriously.

Employers in Scotland are not just expected to follow general employment law and ACAS guidance. They are also expected to follow their own internal policies and procedures. When they do not, that can matter — to a grievance investigation, to a disciplinary outcome, and to an employment tribunal if things go further.

This article explains what your employer's procedure actually is, what it means when it is not followed correctly, how to tell if something has gone wrong even before you have seen the policy, the most common ways employers deviate from their own process, and what practical steps you can take right now.

What Does Your Employer's Own Procedure Actually Say — and Why Does It Matter?

Every employer with a formal workplace is expected to have written policies covering how disciplinary and grievance matters are handled. These are usually called a disciplinary procedure, a grievance procedure, or a capability policy. Some employers have separate policies for different situations — for example, a bullying and harassment policy, a performance management policy, or an investigation procedure.

These documents set out the steps your employer has committed to following when concerns arise. They typically cover things like:

what steps must be taken before formal action begins
how much notice you must be given before any meeting
what information you must receive in advance
who can chair or conduct a meeting
whether you have the right to be accompanied at each stage
what happens after a meeting and how decisions are communicated
what your right of appeal involves and how it is handled

Your employer's procedure matters for two reasons. First, it sets a standard against which their conduct can be measured. Second, in some cases, an employer's internal procedure forms part of your contract of employment — meaning a serious failure to follow it may itself be a breach of contract.

I Don't Have a Copy of the Policy — What Should I Do First?

This is the most common starting point. You suspect something is wrong, but you have never seen the actual policy and have nothing to compare the process against.

You are entitled to request a copy of your employer's disciplinary procedure, grievance procedure, or capability policy at any time. This is not an unusual request and your employer cannot reasonably refuse it. Most employers publish these in a staff handbook, on an internal intranet, or will provide them on request from HR.

Request it in writing — by email rather than verbally. Keep the request simple:

"Could you please provide me with a copy of the company's disciplinary procedure and grievance procedure? I would like to understand the process."

Keep a copy of your request and a copy of whatever is sent back to you, including the date it was provided. If your employer delays, deflects, or refuses to provide the policy, note that in writing too — it may itself be relevant later.

Once you have the policy, you can begin comparing what it says to what has actually happened in your case. That comparison — between what the procedure requires and what your employer actually did — is where procedural failures become visible.

If you are not sure what you are looking for, or if the policy is unclear, that is exactly the kind of analysis Ark Advocacy carries out as part of its initial support.

The ACAS Code and Your Employer's Own Policy — How They Work Together in Scotland

When your employer handles a disciplinary or grievance matter, two sets of standards apply alongside each other.

The first is the ACAS Code of Practice on Disciplinary and Grievance Procedures. This is a statutory code that sets the minimum standard expected of employers across Great Britain, including Scotland. Employment tribunals are required to take it into account when assessing whether an employer acted fairly. If an employer unreasonably fails to follow the ACAS Code and an employee succeeds at tribunal, the tribunal can increase any compensation award by up to 25 percent.

The second is your employer's own written procedure. This is specific to your workplace. It may set a higher standard than the ACAS Code — many employers' policies give employees more rights than the legal minimum, for example by allowing accompaniment at investigatory meetings or requiring more than one investigation meeting before any formal action is taken.

This is where Ark Advocacy's approach is different from general employment law advice. We do not just look at what the ACAS Code says. We look at what your employer's own policy says — and then we look at whether they actually followed it. When there is a gap between what the policy requires and what the employer did, that gap can matter significantly.

You can read more about what the ACAS Code requires in our guide to
The ACAS Code of Practice Explained Simply

Why It Matters When Your Employer Doesn't Follow Their Own Procedure

A procedural failure does not automatically make a disciplinary outcome unfair or unlawful. But it is far from irrelevant. Here is why it matters.

It is relevant to whether a dismissal is fair. When employment tribunals assess whether a dismissal was fair, they look not just at the reason for dismissal but at whether the employer acted reasonably in all the circumstances — including whether a fair process was followed. An employer who failed to follow their own procedure will need to explain why.

It can form the basis of a grievance. If your employer is not following their own procedure during a disciplinary or capability process, you may be entitled to raise a formal grievance about the way the process is being conducted. A grievance of this kind — raised at the right time and in the right way — can pause or affect the disciplinary process and create a formal record of the procedural failure.

It can contribute to a constructive dismissal claim. Where an employer's failure to follow procedure is serious enough to amount to a fundamental breach of the employment contract — particularly where the policy is incorporated into that contract — it may contribute to a constructive dismissal claim if you feel forced to resign as a result.

It affects credibility. Even where procedural failures do not determine the outcome of a case on their own, they affect how the employer's conduct as a whole is viewed — by investigators, by appeal panels, and by tribunals.

You can read more about when formal action may be warranted in our guide to
When to Raise a Formal Grievance at Work in Scotland

The Most Common Ways Employers Don't Follow Their Own Disciplinary Procedure

Understanding what procedural failures look like in practice helps you identify whether something has gone wrong in your own situation.

Skipping the informal stage

Most disciplinary and capability policies require the employer to take informal steps before starting a formal process. This typically means raising concerns with the employee, giving them an opportunity to respond, and allowing a reasonable period for improvement before any formal procedure begins.

If your employer has moved directly to a formal stage — issuing a written warning, starting a formal PIP, or inviting you to a disciplinary hearing — without any prior informal conversations, that may be a failure to follow the procedure correctly.

Failing to investigate properly

The ACAS Code and most internal procedures require that a reasonable investigation takes place before any disciplinary hearing. This means gathering relevant information, speaking to witnesses where appropriate, and forming a fair picture of what happened before any decisions are made.

Failures at this stage can include not speaking to witnesses who might support your account, relying on one-sided reports, failing to consider evidence that contradicts the allegation, or conducting an investigation that is clearly superficial.

You can read more about what a proper investigation should involve in our guide to
Workplace Investigation Process (Scotland) — What Happens First?

Not giving you enough notice or information

Before a formal disciplinary hearing or investigatory meeting, your employer's procedure will typically require them to give you written notice of the meeting, tell you what the concerns are, and provide you with any documents or evidence they intend to rely on — and to do this far enough in advance for you to prepare.

A meeting arranged at short notice, without written details of the concerns, or without relevant documents being shared beforehand, may not meet the requirements of the procedure. If your manager did not give you enough notice under the policy, that is a procedural failure regardless of how informal the meeting was described.

Using the wrong person to chair or investigate

Many employers' procedures require that the person who conducts the investigation is different from the person who chairs the disciplinary hearing. This is to ensure that the decision-maker approaches the hearing without having already formed a view.

Where the same manager investigates, presents the case, and then decides the outcome, that is a recognised procedural failure — and one that may be relevant to whether the process was fair.

Applying different rules to different employees

If you have been treated differently from a colleague in a comparable situation — for example, a colleague who faced similar concerns was given informal support while you were moved straight to a formal process — that inconsistency may be relevant. Employers are expected to apply their procedures consistently. Where they do not, that departure from the policy is worth noting and documenting.

Denying or restricting your right to be accompanied

You have a statutory right to be accompanied by a work colleague or trade union representative at any formal disciplinary or grievance hearing. This right is established by the Employment Relations Act 1999 and cannot be removed by your employer.

In addition, your employer's own policy may extend this right to other stages — for example, allowing accompaniment at investigatory meetings or at welfare meetings. If that right is denied or if pressure is applied to attend without a companion, that is a procedural failure.

You can read more about when and how this right applies in our guide to
Your Right to Be Accompanied at Work Hearings

Changing the allegations during the process

A fair process requires that you know what you are being asked to answer before a disciplinary hearing takes place. If new allegations are added during a hearing that you have had no opportunity to prepare for, or if the nature of the concern shifts significantly between the investigation and the hearing, that may not be consistent with a fair procedure. If the process feels rigged or like the goalposts have moved, document exactly when and how the allegations changed.

Not offering a genuine right of appeal

Both the ACAS Code and almost all internal disciplinary procedures require that you are given the right to appeal any formal outcome. An appeal should be heard by someone who was not involved in the original decision, and it should be a genuine reconsideration — not simply a review of whether the paperwork was completed correctly.

If you have received a formal outcome with no right of appeal, or if the appeal process differs significantly from what the policy describes, that is a procedural failure.

You can read more about the appeal process in our guide to
How to Appeal a Disciplinary or Grievance Outcome (Scotland)

How to Tell if Your Employer Has Not Followed Their Own Procedure

Once you have a copy of the policy, go through it step by step and compare what it says to what has actually happened in your case. Ask yourself:

Did my employer follow the sequence of steps set out in the policy?
Was I given the notice, information, and documents the policy requires?
Has the policy been applied in the same way it appears to be applied to others?
Were the people involved the right people under the policy — for example, at the right seniority level or with no prior involvement?
Have I been given the rights the policy says I should have at each stage?
Did my employer change the process midway through without explanation?

If the answer to any of these questions is no — or if you are unsure — that is worth examining more carefully.

This process — comparing what the policy says to what actually happened — is at the core of what Ark Advocacy does. It requires careful reading of both the policy and the procedural record, and it often reveals gaps that significantly affect how a case is assessed.

What to Do Right Now if Your Employer Is Not Following Procedure

If you believe your employer is not following their own procedure, there are practical steps you can take immediately.

Request your employer's policies in writing. If you do not already have a copy of the disciplinary or grievance procedure, request one now by email. Keep a copy of your request and any response. The section above sets out exactly how to do this.

Do not assume you have missed your chance. Procedural failures can be raised at any stage — during a disciplinary process, in an appeal, or in a formal grievance. It is rarely too late to put concerns about process on the record.

Raise concerns in writing at the time. If something is happening that appears inconsistent with the procedure, say so in writing as it happens. For example, if you are given less notice than the policy requires, write to HR or your manager noting that the notice given does not appear to meet the procedure and asking for the timeline to be corrected. A concern raised at the time carries significantly more weight than one raised later.

Do not simply accept something that feels wrong. Some employers rely on employees not knowing what the procedure says. If you have identified a step that appears to have been skipped or a right that appears to have been denied, you are entitled to raise that concern.

Seek independent advice early. The earlier you get support, the more options you are likely to have. Once a formal process has concluded and an outcome has been issued, some options become more limited.

Start Your Record Immediately

Whether you raise a formal concern now or simply want to protect your position going forward, starting a written record today is one of the most important steps you can take.

A contemporaneous timeline — a running log of events made at the time they happen — is far more credible than a reconstruction written weeks later from memory. For each relevant event, note:

the date, time, and location
what happened and what was said, as accurately as possible
who was involved or present
how it affected you
any action you took and any response you received

Alongside your notes, keep copies of:

your employer's disciplinary and grievance policies
all correspondence about the process, including emails and letters
the original notification of any meeting or hearing
any documents shared with you in advance — or a note if documents were not shared
your employment contract
any previous correspondence relevant to the concerns being raised

Pay particular attention to dates. If a policy requires five working days' notice of a hearing and you were given two, that specific detail — documented at the time — can be important later.

Keep your records on a personal device and a personal email account, not on work equipment or systems.

When Procedural Failures Become Particularly Serious

Not every procedural failure has the same significance. Some failures are more serious than others, and in some situations a procedural failure becomes the central issue in a case rather than a supporting argument.

Procedural failures are likely to be treated as particularly serious where:

the failure has affected your ability to present your case, challenge the evidence, or bring a companion
the failure involves the same person investigating and deciding the outcome
you were not informed of the allegations against you in advance
the policy was not applied consistently — for example, where you have been treated differently from a colleague in a comparable situation
the failure is part of a pattern rather than an isolated error
the failure occurs at a critical stage, such as the decision to dismiss or the denial of an appeal
the policy document is incorporated into your employment contract, making a serious deviation a potential breach of contract

In any of these situations, the procedural failure is not a minor technical point — it goes to the heart of whether you received a fair process.

If the Procedure Itself Does Not Meet the Required Standard

Occasionally, the issue is not just that your employer failed to follow their procedure — it is that the procedure itself does not meet the minimum standards set by the ACAS Code of Practice.

Some employers have outdated or poorly drafted policies. Some policies do not include a right of appeal. Some do not make clear what constitutes a formal warning or what the different stages of the process mean. Some fail to reflect the statutory right to be accompanied.

Where this is the case, the ACAS Code provides the standard your employer should still have met, regardless of what their internal policy says — and a tribunal will apply that standard. If you have a disability, your employer also has a legal obligation under the Equality Act 2010 to make reasonable adjustments, and this applies regardless of what any internal policy does or does not say.

You can read more about what the ACAS Code requires and how it applies in Scotland in our guide to
The ACAS Code of Practice Explained Simply

Support Is Available

Realising that the process feels wrong — but not being sure whether you are right, or what to do about it — is an uncomfortable position to be in. Many employees across Scotland — including those in Glasgow, Edinburgh, and surrounding areas — find themselves in exactly this situation: aware that something about the process does not feel fair, but uncertain whether they have grounds to say so or how to raise it effectively.

The earlier you seek independent support, the more clearly you will be able to understand your position and the more options will be available to you.

How Ark Advocacy Can Help

Analysing the gap between what an employer's procedure says and what they actually did is central to what Ark Advocacy does. It is the approach that sets us apart from general employment law advice, and it is often where the strongest arguments in an employee's case are found.

If you believe your employer has not followed their own procedure, we can help you:

obtain and review your employer's disciplinary, grievance, and capability policies
compare those policies to what has actually happened in your case
identify specific procedural failures and assess how significant they are
raise concerns about procedural failures in writing at the appropriate stage
prepare a formal grievance about the conduct of a disciplinary or capability process
build a clear and credible contemporaneous record from this point forward
prepare your response to any hearing, with the procedural failures clearly identified
assess whether the procedural failures in your case are relevant to a formal appeal or an employment tribunal claim

You do not need to wait until a final decision has been made. If the process is still ongoing, acting now — while there is still an opportunity to raise concerns — is almost always better than waiting.

Get in touch with Ark Advocacy Scotland to find out how we can help.

FAQ

Does it automatically make a dismissal unfair if my employer didn't follow their own procedure?

Not automatically. Employment tribunals look at whether the employer acted reasonably overall, including whether the outcome was within the range of reasonable responses open to them. However, a failure to follow the employer's own procedure is a relevant factor in that assessment, and a significant procedural failure — particularly one that affected your ability to respond — can make a dismissal unfair even where there may have been a genuine reason behind it.

What is the difference between the ACAS Code and my employer's own procedure?

The ACAS Code of Practice sets the minimum standard expected of all employers in Great Britain. Your employer's own procedure may set a higher standard — giving you more rights, more notice, or additional steps not required by the Code. When assessing fairness, both sets of standards are relevant. Ark Advocacy looks at both.

Can I raise a grievance about the way a disciplinary process is being handled?

Yes. You can raise a formal grievance about the conduct of a disciplinary or capability process while that process is still ongoing. Doing so creates a formal record of the procedural concerns and requires your employer to respond to them. The timing and content of such a grievance matters, and independent advice before raising it is worth seeking.

My employer says their procedure is just guidance, not binding. Is that right?

Some employers argue that their internal policies are guidance only and not contractual commitments. Whether that is correct depends on the specific wording of the policy and your employment contract. Even where a procedure is not formally incorporated into your contract, a significant and unexplained departure from it is still relevant to whether a dismissal was fair. An employment tribunal will take into account what the employer's own procedure said, regardless of whether it is described as binding.

The same manager investigated and then chaired my disciplinary hearing. Is that a problem?

Most disciplinary procedures — and ACAS guidance — require that the investigation and the hearing are conducted by different people, to ensure the decision is made without prior bias. Where the same person does both, that is a recognised procedural failure and one that may be relevant to whether the outcome was fair.

I wasn't given a copy of the procedure. Does that matter?

You are entitled to request a copy of your employer's disciplinary and grievance procedure at any time. If it was not provided to you at the start of a formal process, that may be relevant — particularly if the failure to provide it meant you were unaware of rights you had. Request it in writing now and keep a copy of your request.

What if the procedure was followed on paper but felt unfair in practice?

This is a common situation. Sometimes employers follow the formal steps of a procedure but do so in a way that is superficial, rushed, or one-sided — completing the paperwork without genuinely engaging with the process. In those situations, it is worth examining whether the substance of each step was actually carried out fairly, not just whether the steps were formally recorded as having taken place.

How long do I have to do something about a procedural failure?

It depends on what stage the process is at and what you want to do. A grievance about the conduct of a disciplinary process can usually be raised while the process is still ongoing. An appeal against a formal outcome typically has a short deadline set by your employer. An employment tribunal claim for unfair dismissal currently has a three-month time limit from the date of dismissal, subject to ACAS early conciliation. Acting promptly is important regardless of which route you are considering.

Can I ask my employer for a copy of their disciplinary procedure?

Yes. You are entitled to request it at any time and your employer cannot reasonably refuse. Request it by email, keep a copy of your request, and note the date it was provided. If your employer delays or refuses, that in itself may be relevant to your case.

Disclaimer: This article provides general information and is not legal advice. Employment situations are fact-specific, and strict time limits can apply.

About the Author

Ark Advocacy provides structured workplace support for employees across Scotland facing investigations, disciplinaries, grievances, and dismissal processes.

All articles are written and reviewed using recognised UK workplace procedure standards, including ACAS Code of Practice guidance where applicable.

Your Employer Isn't Following Their Own Procedure in Scotland — What You Can Do About It (2026)