Written warning: disciplinary guide

An employer can give a written warning to an employee where they have breached the organisation’s disciplinary code, or their work or conduct has fallen short of what is expected. Employers however have to ensure they follow a fair and lawful disciplinary process to avoid the risk of tribunal claims.

This guide offers employers further detail about when and how to issue a written warning.

Disciplinary procedure

The correct disciplinary warning procedure to follow is the disciplinary procedure of your own organisation. All organisations should have one and as a minimum the ACAS Code of Practice on disciplinary and grievance procedures must be followed.

Generally, the procedure will set out the kind of conduct that will result in disciplinary action being taken. Some this conduct is universal, for example, failure to follow instructions or persistent lateness. Other forms of misconduct will be specific to your organisation, for example, failure to follow site-specific health and safety rules.

Depending on the reason for the disciplinary action, the following steps may be appropriate:

• a verbal or ‘informal’ warning;
• a written warning; and
• a final written warning.

It is not necessary to follow each step in every case. For example, in the case of a serious health and safety breach you would be entitled to move straight to a final written warning.

It is extremely important that any steps taken under the disciplinary procedure are properly documented, for two reasons. The most important is that if the disciplinary process results in the dismissal of your employee, they could challenge that dismissal in an employment tribunal and you will need documentation to support the reasons for your decisions.

The second is that the correct recording of disciplinary action is shown to assist employees in improving their behaviour or conduct, removing the need to dedicate further time and resources to deal with future issues.

Do you need to write a verbal warning letter?

This depends on the wording of your organisation’s disciplinary procedure. Many employees feel that receiving a ‘verbal warning letter’ makes that warning a formal written one. For this reason, you may not want to issue a letter to an employee confirming a verbal warning.

However, it is important that a record is kept that the verbal warning has been issued. It should state the date and time the warning was given, by whom and for what reason. It should also state whether the employee was given guidance about their future conduct.

The reason for keeping such a record is that if the employee commits further breaches of the disciplinary procedure, there will be justification for moving onto the next step.

If your organisation refers to a first warning as an informal warning rather than a verbal one, it may be appropriate to issue an informal warning or ‘heads-up’ via a letter or email. This can be from a manager, outlining in a friendly way where improvement needs to be made and any action the organisation will take to facilitate the improvement. It should also give a timescale by which the improvement needs to have been made.

How to hold a disciplinary meeting

The next step in your disciplinary procedure will usually be to issue a letter containing a written warning. It is standard to hold a meeting with an employee before issuing such a letter. The employee should be invited to the meeting by letter or email. It is not necessary to let the employee know who will be attending the meeting, but it should usually be at least a manager and member of the HR team.

The letter should contain the following information:

• the date and time of the meeting;
• the reason for the meeting. This need only be a sentence explaining that disciplinary action may be taken against the employee in relation to [ ];
• any documents relevant to the matter;
• that the employee may be accompanied by a colleague or trade union representative; and
• the possible outcomes of the meeting.

Possible outcomes are that no further action will be taken, that a written warning, or a final written warning, will be issued, or, rarely, that the employee will be dismissed.

At the meeting, or ‘hearing’ as it is sometimes known, both sides should have the opportunity to explain themselves. If the employee wishes to be accompanied by a representative from their trade union or professional association, you should accommodate this by giving adequate notice of the meeting, and being open to rearrange it if necessary (although you are not obliged to postpone the hearing for more than five working days after the original date). The presence of an external representative can be positive in that it can assist the employee in understanding the process and make it harder for them to claim in the future that the proceedings were unfair.

You can decide on the outcome of the meeting then and there, or take some time to consider your response and communicate this to the employee later. However, the decision should be made and communicated promptly to minimise the stress on your employee.

How to write a written warning letter

If you do decide to issue a written warning letter, you can follow the template below:

“Dear

Thank you for attending the meeting with me and [list of attendees] on the [date and time] at [the location].

We have carefully considered the matter and find that [you did commit the act in question/your conduct has fallen short of that which is expected of you etc].

Accordingly, we hereby issue a written warning which will stay current for disciplinary purposes for [six months or one year] after which time it will be considered to be spent.

We expect the [behaviour complained of] to improve in the following ways [insert explanation of improvements required] within a period of [x] weeks / months.

If there is no improvement, we may take further disciplinary action against you, the outcome of which could be a final written warning or dismissal.

If you wish to appeal against this decision, please send a letter to me stating that you wish to appeal and for what reasons, within fourteen days of receipt of this letter. Further information on your appeal can be found in the Disciplinary Procedure.

Yours sincerely”

Points to note about the letter:

• Depending on the nature of the disciplinary offence and whether or not the employee disputed all or some of the facts, you can insert more of an explanation as to why the employee is being disciplined;
• you must inform an employee of their right to appeal;
• most disciplinary procedures have a time period after which the written warning will not be taken into account if further breaches of the disciplinary procedure occur. You should check the procedure in your organisation.

Of course, if an employee is found not to have committed the acts they are accused of or for some other reason a written warning is not necessary, you must inform the employee of this in writing. It should be stated clearly that as a result of the findings at the disciplinary meeting, no further action will be taken.

How to write a final written warning letter

In order to issue a final written warning letter you must go through the same procedure as you did with the written warning, e.g. inviting the employee to a disciplinary meeting to hear the evidence against them. If the employee’s misconduct is within the period specified by the written warning, then the resulting disciplinary action will be a final written warning, or even dismissal.

A final written warning letter is very similar to the written warning letter, with the important addition that if the employee commits a further breach of the disciplinary procedure within [time period] then you will hold a dismissal meeting, the result of which could be the employee’s dismissal.

Avoiding unfair dismissal claims

Employees have the right not to be unfairly dismissed, i.e. to be given a legally fair reason for their dismissal, once they have completed two years of employment with you.

The rules around fairness in dismissal situations are contained in the Employment Rights Act 1996 (ERA). This states that there are five legally fair reasons for an employer to dismiss an employee. These are:

Capability

Capability includes the skill or aptitude of the employee, and whether they are no longer capable due to ill-health.

Conduct

An employee’s poor conduct can justify their dismissal.

Redundancy

If an employee is redundant it means the employer no longer has work of the kind the employee was hired to do.

Illegality

An employee can be dismissed if it is illegal either for the employee or the employer, if the employee continues in their role.

Some Other Substantial Reason

The full definition in the ERA is ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’. This generic term usefully covers a number of scenarios including a breakdown of trust and confidence between employer and employee, reputational risk posed by actions of the employee, a conflict of interest, the non-renewal of a fixed term contract and business reorganisation.

In each case the employer must have acted reasonably in treating the reason as justifying dismissal.

The Employment Tribunal is not allowed to substitute its own view for that of the employer; it can only look at the evidence you, the employer, used to come to your decision and decide if that was reasonable. In practice this means that few cases of dismissal are overturned by the Tribunal.

Nevertheless, it is important to remain vigilant as a Tribunal is much more likely to uphold an employer’s decision, if challenged, where there is a clear documentary trail of evidence explaining the employer’s decision-making at each step. This is where the disciplinary warning letters are vitally important. Such letters will illustrate to the Tribunal that the employer carefully considered the employee’s performance and gave them a chance to improve, whilst also setting out clearly the timescales and consequences that could follow.

You must hold a dismissal hearing before giving notice to your employee. The letter inviting the employee to the hearing must, as previously, state the following:

• the reasons for calling the meeting;
• that dismissal is a possible outcome of the meeting;
• that the employee can be accompanied by a colleague or trade union representative; and
• if relevant, the evidence attached to the letter, upon which the employer is relying.

In some cases where the facts are in dispute, or the matter is very complex, it may be necessary to hold a disciplinary investigation meeting first where the employee is interviewed about the matter. The employer should be able to show that they have taken care to investigate where an employee disputes the truth of any allegations made.

If the decision is made to dismiss the employee, the letter should state:

• the reason for the dismissal, including, if relevant, the dates and nature of previous warnings;
• that the employee has the right to appeal;
• the notice period; and
• the date of the employee’s last date of employment by the organisation.

Written warning letter FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.