Final Written Warning: What Employers Need to Know

Final written warnings are an important part of the disciplinary process in any organisation.

They allow employers to show employees that their behaviour is unacceptable and that they need to change before it results in dismissal.

Warnings provide a formal, documented way for employers to give feedback about performance or conduct, with the aim of improving team members' behaviour and attitude.

The law surrounding these warnings is very strict, meaning that employers must be careful when issuing one.

To help ensure you stay within the law and deal with your employees fairly, here is everything you need to know about final written warnings.

Get in touch with us today if you are being accused of unfair dismissal or if you need advice on how to terminate an employee's contract fairly.

What is a written warning?

A written warning is a formal document given to an employee by their employer, stating that they have breached the terms of their contract and that further breaches may lead to dismissal.

A written warning should always be taken seriously as it can often be the first step towards dismissal from employment.

It is important to note that a written warning does not automatically lead to dismissal – it is simply one step in a process that you, as an employer, must follow before dismissing an employee.

The main purpose of issuing a written warning is to give the employee an opportunity to improve their behaviour or performance so that they can continue working for your company.

What is a final written warning?

As the name suggests, this is the final stage of the disciplinary process before you dismiss the employee, and it should only be used as a last resort.

A final written warning is a very serious matter, and its severity should be made clear to your employee.

Final written warnings last for only a fixed period of time, and you must set out that timeframe within the warning so that everyone understands the situation.

During this timeframe, the employee must meet all the conditions that you set out in the warning, or they will face dismissal.

How long does a final written warning last?

All formal workplace disciplinary measures must have a clearly defined expiry date, or you could find yourself in serious legal trouble if you are deemed by a judge to have suspended or disciplined your employees indefinitely.

In most cases where there are no specific guidelines in an employment contract, courts typically recommend that all disciplinary measures expire after three months.

However, for smaller incidents of misconduct, or for employees with extenuating circumstances such as personal issues that have affected their work performance, companies may decide to enforce a longer timeframe (often six months) so that the employee is given adequate time to change.

What conduct or behaviour warrants a written warning?

There is no definitive list of behaviours that warrant a written warning, as each situation will be different. However, some common reasons for issuing a written warning include:

• Lateness or absenteeism
• Poor performance
• Rudeness or disrespect towards colleagues or customers
• Breaches of company policy
• Alcohol or drug abuse at work
• Theft or fraud
• Bullying or antisocial behaviour
• Sexual harassment

Of course, some of these incidents may result in immediate dismissal depending on the severity of the offence, your company's policy or how many previous incidents have occurred with the employee in question.

 

How many verbal warnings should be given before issuing a written warning?

The law does not set any specific guidelines on how many verbal warnings should be given before issuing a written warning.

However, it is generally recommended that for minor conduct issues such as lateness, you give at least three verbal warnings before progressing to a written warning.

This will give your employee time to improve their behaviour and hopefully stop the need for a formal written warning.

Of course, if the behaviour or conduct in question was of a serious nature, you decide to go straight to a written warning.

For gross misconduct, you may even go straight to a final written warning to make it absolutely clear that your employee's behaviour or actions are not acceptable and will not be tolerated.

What should be included in a written warning?

When writing any disciplinary action, it is important to note that employers must abide by strict legal guidelines and include specific information in their documentation or risk being accused of unfair dismissal.

A final written warning should always include:

• The date on which the employee received verbal warnings from management.
• The behaviour expected of employees at work.
• Details of the unacceptable behaviour or conduct.
• Details of how many times this behaviour or conduct occurred.
• An expiry date detailing when an employee can expect further attention if they continue to perform poorly or behave inappropriately.
  
  

What are the laws that govern written warnings?

As an employer, you have the right to issue your employees a written warning if you feel that it is appropriate.

However, employees also have rights, and as an employer, you must abide by certain rules when issuing a written warning:

• Written warnings should be signed by an appropriate manager – this must either include the employee’s direct manager or another senior member of staff who can confirm that all information in the document is true.
• The warning must include all relevant details - This means clearly stating what behaviour needs changing and how many times you have given your employee verbal warnings before moving on to formal action. If there are any mitigating circumstances surrounding why you chose to give them a warning then these need to be included too so that the employee has a chance to respond.
• Final written warnings must have an expiry date - all disciplinary action, including final written warnings, should have a pre-determined expiry date so that employers cannot indefinitely suspend or discipline employees.
  
  

Why are written warnings so important?

Written warnings are important for you as an employer because they reduce the chances of you being accused of unfair dismissal.

This is because there will be a paper trail that shows you have made it clear to your employee that their conduct or actions are not acceptable and that you have given them ample opportunity to rectify it.

Being able to show this will make it very difficult for an employee to argue that they were not aware of your expectations or how poor their performance was, as there is evidence that shows the contrary.

Written warnings are also important because they can be the wake-up call an employee needs to change their behaviour.

Employees who receive written warnings often improve their performance after receiving formal notice from management, which means it is less likely they'll need further discipline later on down the line.

Of course, this isn't always the case, but when a written warning is effective, it can save you a lot of time and unpleasantness as you won't need to dismiss the employee.

 

How many written warnings should you give before dismissal?

There is no definitive answer to this question as it will depend on the severity of the employee's behaviour or conduct and how many times they have been warned before.

However, if the offences are not too severe, you should usually aim to give your employees at least two written warnings before dismissing them.

These could be for poor performance or unacceptable behaviour.

This will show that you have made a genuine effort to help the employee improve their behaviour or work ethic and have given them plenty of opportunities to do so.

As noted above, there are occasions when an employer has no choice but to move straight to a final written warning or even dismissal.

These may include incidents of violence, theft or gross misconduct.

In these cases, you should still make it clear to your employees why they are being disciplined and keep a record of your reasons for doing so.

It is a legal requirement for employers to keep all records and paperwork relating to disciplinary action, including written warnings and dismissals.

This is in case there is ever any dispute about the reasons for an employee's dismissal or whether the correct procedures were followed.

Reasons for fair dismissal

If you decide to dismiss an employee after issuing them with a final written warning, or as the result of gross misconduct, there are various reasons why this would be considered fair dismissal:

• Your employee has failed to improve their behaviour or work ethic after receiving formal notice from management. They may have done this either once or several times, but the fact remains that they have chosen not to improve their performance despite being warned of the potential consequences.
• Your employee has failed to follow your policies and procedures after receiving formal notice from management. For example, if you have a written policy about how employees should conduct themselves when meeting customers, but an employee fails to abide by it, their dismissal would be considered fair.
• Your employee is unable to perform their role or duties to a satisfactory standard after receiving formal notice from management. For example, if you have received multiple complaints from customers or clients and your employee has failed to improve, this could be grounds for dismissal.
• Your employee is endangering themselves or others through their misconduct. For example, if an employee is using drugs or has assaulted a colleague or customer then their dismissal would be considered fair.
• Your employee has engaged in gross misconduct. For example, theft, fraud or violent behaviour.
  
  

Reasons for unfair dismissal

As an employer, you do not have the right to simply dismiss an employee on a whim.

The following would not be acceptable reasons for terminating an employee's contract:

• Your employee wants to take maternity leave or paternity leave.
• Your employee has a disability.
• Your employee is taking part in lawful trade union activities.
• Your dismissal is discriminatory (based on sex, race, age, etc).
• Your employee takes sick days or holiday days in their contract.
• Your employee refuses to carry out requested work duties which are not in their contract or are unreasonable or dangerous.
• Your employee is accused of misconduct but has not been allowed due process or fair treatment as outlined in your disciplinary policy and procedures. This would include the right to appeal any decision, representation by their trade union representative (if applicable) and any time off for stress during the investigation against them.

What should you do if you are accused of unfair dismissal? 

If you are an employer who has been accused of unfair dismissal, it is important to seek legal advice as soon as possible.

You will need to prove that you have followed your disciplinary policy and procedures correctly and that there were genuine grounds for dismissing the employee in question.

This can be a complex process, so it is best to leave it to the experts.

At Neathouse Partners, we have extensive experience representing employers in every type of dispute, including allegations of unfair dismissal.

If you are being accused of unfair dismissal by a former employee, or you are considering terminating a current employee's contract but are not sure whether your grounds for dismissal are valid, get in touch with us today, and our expert lawyers can discuss your situation.

 

Final Thoughts

It is vital that you take all of the correct steps when disciplining or dismissing an employee.

As well as warning employees verbally if their conduct or performance is unacceptable, written warnings and a final written warning should be issued so that they know improvements need to be made.

Make sure you keep all records and evidence of warnings given before dismissing an employee, as you may need them if you are accused of unfair dismissal.

Get in touch with us today if you are being accused of unfair dismissal or you need advice on how to terminate an employee's contract fairly.