Following this, the employer will have to decide whether or not further disciplinary action is justified. If the misconduct is confirmed, it is usual for a written warning to be issued to said employee.
Generally, any further act of misconduct within that time would then result in a final written warning. Once a first written warning has lapsed then it will not generally affect any future misconduct, which should be considered for disciplinary purposes in isolation from the original act of misconduct. Please bear in mind that this is a complex situation — get in touch with us for further guidance.
If a first act of misconduct is very serious but there is some mitigation making immediate dismissal inappropriate, then an employer can potentially decide to skip the first written warning and go straight to issuing a final written warning.
Where the employer has a well drafted disciplinary policy, it should be made clear that the employer has the discretion to skip to a final warning in appropriate circumstances. Where the act of misconduct is so serious in itself or has such serious consequences that it amounts to gross misconduct, an employer is entitled to dismiss without giving a warning at all and without notice or payment in lieu of notice.
However, a reasonable employer will always follow a fair disciplinary process — including an appropriate investigation — before dismissal for gross misconduct. In addition, staff rules should give examples of acts which the employer may regard as gross misconduct.
The best practice guidance laid down in the ACAS Code of Practice on disciplinary and grievance procedures recommends the structure of first and final warnings as detailed above. Employers are therefore well advised to follow this, and any less lenient procedure is likely to be frowned upon by an employment tribunal, potentially leading to a finding of unfair dismissal. However, the actual process which an employer follows may vary if, for example, they have a longer, more complicated procedure which allows for a greater number of warnings before dismissal.
If this is the case, the employer has much less freedom to deviate from the procedure as it is laid down in the contract. However many employers are unsure of how to implement a disciplinary procedure in their workplace, without leaving themselves exposed to a claim for unfair dismissal.
And should ensure the employer does not lose a case for unfair dismissal on the grounds of failing to follow fair procedures. However not applying the principles from the Code would be a mistake by the employer because any 3 rd party tribunal or Court will be unimpressed without some procedure providing fair procedures to the employee to ensure fairness and natural justice.
Even in the absence of a workplace disciplinary procedure the employee is still entitled to fair procedures and natural justice and the Code of Practice, if followed, should ensure this. In cases of dishonesty, no warning is necessary. The steps in the disciplinary procedure generally follow graduated steps including a verbal warning, written warning, final written warning, and dismissal.
However, in cases of gross or serious misconduct it is permissible to start at stage 4 of the procedure. However, other sanctions apart from the nuclear option of dismissal should be considered by the employer. Alternatives might include a transfer to a different part of the workplace, different role, or demotion. Keep in mind that an employee can be suspended on pay pending investigation but would only be suspended without pay pending an appeal of a dismissal.
This would involve a meeting with the employee at which the employee could bring a colleague or other representative. There is no right to bring a legal representative, unless the employer agrees. This may be a trade union representative, even though the employer may not formally recognise or engage with the union.
His role will be as a minute taker and witness, not an advocate or spokesperson. At the meeting the employee should be advised of what the problem is and invited to respond and explain his actions. Following the meeting a confirmatory letter should be given to the employee. It should also contain the improvements required of the employee in respect of the behaviour which led to the warning and the timeframe within which the improvement must be made.
This letter should also state that failure to improve will lead to the 2 nd stage of the disciplinary procedure and ultimately dismissal. If an employee was suspended with pay pending an investigation it is vital that he knows how long the suspension is to last and the investigation must be held within a reasonable time frame. Once this disciplinary procedure has started the employer should assist the employee to improve conduct or performance, whichever was the source of the problem in the 1 st place.
The employer should record the details of this 3 month monitoring period and retraining or relocation should be considered, if possible and reasonable. However, if the employee fails to improve or there is a repeat of the activity that caused the oral warning in the 1 st place the employer can then issue a first written warning. Check out my online course in how to carry out a disciplinary procedure in the workplace.
The 1 st written warning can be issued within the period of time advised for monitoring after the verbal warning, provided there is no improvement in conduct or performance.
Before issuing it the employee should be invited to another meeting, told of the transgression, and given the opportunity to respond. The written warning will then be issued and last for another 3 months. This warning should also clearly set out the nature of the problem, suggest solutions such as retraining, and advise of the possible sanctions including dismissal if no improvement is observed within the 3 months.
After following a fair disciplinary procedure, the employer should decide on the best outcome based on:. Each workplace might have its own versions of disciplinary outcomes.
They should be written in your workplace's disciplinary policy or guidelines. For a disciplinary outcome that's not a dismissal, it's a good idea for the employer to give the employee specific goals and timeframes for improvements.
If the employee's conduct or performance has not improved in the timeframe set, the employer should repeat the disciplinary procedure until improvements are made or until dismissal is the only fair and reasonable option. When it's decided there was no misconduct or performance issue, the employer should end the disciplinary procedure.
To make sure there is no bad feeling, the employer should talk privately with the employee and any other staff who knew the disciplinary procedure was happening. They should make clear there is no longer anything to worry about and should help the employee get back to work as normal.
It's a good idea for the employer to keep a note of how they carried out the procedure for future reference. If the misconduct or performance issue was found to be small and not serious, the employer might just have an informal talk with the employee. Your workplace might call it a 'verbal warning'. It's a good idea for the employer to still keep a confidential written record of informal or verbal warnings for future reference. A written warning is a formal warning that the employer can give the employee at the end of the disciplinary procedure.
A first written warning is normally the first step an employer will take when misconduct or poor performance is confirmed.
In cases of serious misconduct or poor performance, the employer does not have to give a first written warning and can instead go straight to a final written warning. For example, where the employee's actions have, or could, cause serious harm to the business.
If an employee does not meet the requirements of their final written warning in the timeframe set, it could lead to dismissal.
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