The ability to give a final written warnings will likely be included in your business’ Disciplinary Policy. Final warnings can be valuable tool to help you effectively deal with poor performance, conduct and capability concerns. So, what is a final written warning, how can they be used fairly, and what else is it helpful to be aware of where final written warnings are concerned?
Contents:
- What is a final written warning?
- What effect does a final written warning have on the employee?
- When should I give a final written warning?
- How do I give a final written warning fairly?
- What are the potential legal issues with final written warnings?
- What should I write in a final written warning?
- How long should a final written warning last?
- Can an employee decline to accept a final written warning?
- Summary
What is a final written warning?
A final written warning is quite self-explanatory – it gives employees a clear indication that the issues with their behaviour or performance are so serious that they are on their last chance with their employer.
The final written warning should be in writing, and it should be drafted in such a way that it is perfectly clear to the recipient that it is the final step in the disciplinary process before dismissal. The letter should make it very clear that failure to resolve the issues satisfactorily, or a repeat of the same conduct, within a reasonable and stated timescale can result in the employee being dismissed.
What effect does a final written warning have on the employee?
An employee should be aware that they are one warning away from dismissal if this is the case and so that it is their last chance to change their behaviour if they want to remain in your employment.
It should be made clear to the employee that following a final written warning, the subject of that warning will be closely monitored. If an employee’s performance in a certain area has been poor, they will know that you will be reviewing regularly whether they are meeting the standards you require and you will be evidencing in writing any improvements or failings during the period you have given them to make the improvements. If the warning has been issued for conduct reasons, it should be similarly clear that a repeat of that conduct will be treated very seriously indeed and could lead to termination of employment.
When should I give a final written warning?
A final written warning will generally follow an investigation into the facts of the allegations and may follow informal verbal warnings and a first written warning if the concern relating to performance, capability or conduct is recurrent or prolonged.
However, in certain situations you may be justified in issuing a final written warning straight away (without earlier warnings) under your disciplinary process. To do this, you need to be satisfied that the matter is sufficiently serious that a ‘standard’ warning is an insufficient sanction on its own. .
Before you issue a final written warning, it is vitally important that you have fully investigated the allegations and given the employee the opportunity to attend a disciplinary hearing on fair notice and accompanied by a colleague or trade union representative should they wish, to defend themselves against the allegations being made. Following a fair and reasonable process reduces the risk of grievances and the risk of employees arguing there has been a breakdown in trust and confidence, which can lead to constructive dismissal claims.
How do I give a final written warning fairly?
Before taking any disciplinary action, check that you are aware of the contents of the ACAS Code of Practice on disciplinary and grievance procedures (the ACAS Code) and the content of your business’ disciplinary policy. Your employee should be aware of where to find your business’ disciplinary policy, and be provided with a copy of the document if they are subject to any part of the procedure, so that they are aware of how disciplinary issues are investigated, how disciplinary hearings work and the appeal process. It is also helpful if your business’ disciplinary policy sets out what conduct, performance and capability matters might lead to disciplinary sanctions and when different sanctions will be issued.
If you would like further specific advice on a disciplinary matter or would like your business’ disciplinary policy drafted or updated, our expert employment lawyers can help.
Under the ACAS Code there are four stages of best practice before a final written warning is issued:
- Establish the facts – use a full and fair investigation speaking to any witnesses and reviewing any data without unreasonable delay to fully discover the nature and extent of the disciplinary issue(s);
- Inform the employee – where there is a case to answer, explain to the employee what the disciplinary issue is and provide them with the evidence you have. Give the employee a reasonable opportunity to prepare to discuss this in a disciplinary hearing and advise them of their right to be accompanied by a colleague or Trade Union representative.
- Disciplinary hearing – hold a fair disciplinary hearing allowing the employee the opportunity to defend themselves, ask questions and share any evidence they have, including evidence of witnesses in support of their version of events.
- Deciding on disciplinary action- having considered all the evidence, a fair and proportionate disciplinary response is required. What is fair will depend on the specific circumstances including the employee’s personal circumstances, previous disciplinary record and the seriousness or the length of time the disciplinary issue(s) have been going on. Once a decision has been made this must be communicated to the employee without unreasonable delay, in writing, with reasoning and consequences of the decision. The employee will need to be informed of their right of appeal and how and to whom they can appeal the decision.
For more details please see our article on how to carry out a fair disciplinary procedure, or for bespoke advice on a specific set of circumstances please contact our specialist employment team.
Before taking the decision to issue a final written warning, it is critical that you judge whether the issues being decided are among the most serious or repeated breaches of your disciplinary procedure, and whether the decision is consistent with any previous disciplinary decisions on similar facts. If a different decision has been taken on similar facts you will need to be able to objectively justify why a different sanction has been issued in the particular circumstances of a case to avoid any future claims relating potentially to unfair dismissal or discrimination, if relevant.
What are the potential legal issues with final written warnings?
Whilst you may already be aware of the importance of complying with the ACAS Code and your business’ disciplinary procedure, it is also important not to issue a written warning and assume that there is no further obligation to assist your employee with improving.
Whilst clearly most of the onus should be on the employee to make the reasonable improvements that you are suggesting, you will need to be careful to consider the individual circumstances of the employee. For example, could the employee be disabled and require for reasonable adjustments to be made to make their role easier for them to carry out? Failure to make reasonable adjustments could lead to a successful claim for discrimination against your business.
Has the employee recently suffered a bereavement or are they suffering with a mental health problem, trauma or addiction, for example, in their personal life and require additional support? Has the role and various tasks and standards expected been explained in detail and have they had the opportunity to ask questions? Are the expectations reasonable and achievable given the time and resources available to the employee? Would an employee benefit from additional mentoring or training which could be easily and inexpensively provided by the business? Failure in any of these areas could make a subsequent dismissal unfair. Check with a solicitor if you are unsure about whether a final written warning is fair under the circumstances.
If considerations are made about adaptations to a role or training and support, these, as well as the expected standards and minutes of any meetings, should be written down together with your reasoning, and preferably sent to your employee to sign or acknowledge they have read, as evidence that a fair procedure has been followed.
Your employee should be provided with the opportunity within a reasonable time to appeal any disciplinary sanctions, including final written warnings and it is prudent to document the appeal process.
What should I write in a final written warning?
The purpose of a final written warning is to communicate to the employee where they have fallen short of expected standards, what needs to improve, by when and what will happen If the required changes are not made in time.
It is advisable as a minimum to include the following in the final written warning:
- A summary of the disciplinary hearing findings and outcome.
- The fact that a final written warning has been issued and how this decision was reached.
- What improvement is required and any training, reasonable adjustments, mentoring or other support that will be offered to assist the employee to make the necessary improvement.
- Consequences of not improving the disciplinary issue within the reasonable timeframe given, which may be a further disciplinary hearing leading to dismissal, demotion or loss of bonus or other benefit, for example.
- The length of time that the final written warning will remain active before it will be disregarded for disciplinary purposes if the required improvements are made in the timescale given.
- The employee’s right to appeal the disciplinary decision, how and to whom to appeal and to whom they can address any questions about the final written warning, its meaning, expectations and consequences.
You will need to retain a copy of the final written warning on the employee’s file and you may ask them to sign a copy as confirmation of receipt and understanding of the warning and required improvement.
If there are specific questions you have about the content of a final written warning which you would like to discuss further with us, contact our employment lawyers.
How long should a final written warning last?
What is reasonable will depend on the specific circumstances and what the final written warning is for. If performance needs to improve significantly within a set period of time this timeframe should be set out and may be 3-6 months, but if the improvement is met within that time you may still advise that the final written warning remains active for a period of 12 months to ensure that there is no lapse in performance during that time. If the performance was not improved in the 3-6 month timescale, the consequence would have been set out in the final written warning for this.
Whilst a final written waring typically remains active for 12 months from issue, these are only guidelines and it is the employer’s decision as to what is reasonable in the circumstances. Some guidance as to what the employee can expect should be set out in your business’ disciplinary procedure however, and the precise timescale will need to be detailed in the written warning itself.
Can an employee decline to accept a final written warning?
Whether an employee declines to acknowledge or sign notification of a final written warning does not mean it isn’t valid.
As long as you have communicated the final written warning in writing to the employee and explained what this means it can be retained on their record and remains active for the reasonable time stated in your company’s disciplinary policy and / or in the final written warning itself. The employee should be given the opportunity to appeal the decision and ask questions about the final written warning, but provided that you can justify the decision the final written warning is a fact and not something that requires acknowledgement of, or agreement to, by the employee.
Summary
Whilst a final written warning can be a useful tool as part of your business’ disciplinary procedure, it is worth ensuring that you have a comprehensive and up-to-date disciplinary procedure and that managers and human resources know how to carry out a disciplinary procedure and issue warnings fairly. If you are unsure what to write in a final written warning, whether a final written warning is appropriate under your circumstances, how long is reasonable for an improvement to be made or for a final written warning to remain active, or if you have any other questions about final written warnings, our employment solicitors would be happy to assist you.
