There are a number of obligations employers have to meet when issuing a final written warning.
The following guide for employers and HR personnel looks at the steps that should be taken to avoid the potential pitfalls when issuing a final written warning, while ensuring a fair disciplinary process is followed. We also consider what to do if you are considering dismissing the employee, with best practice tips to help reduce the risk of unfair or wrongful dismissal claims.
What constitutes a final written warning?
If an employer has serious concerns about an employee’s conduct or capability at work, having carried out an investigation into the issues or any allegations, it may be appropriate to issue the individual concerned with a written warning. In some cases, there may be a first written warning or even a series of warnings. In others, if the matter complained of is sufficiently serious, the employer may be justified in going straight to a final written warning.
A final written warning is an explanation by the employer, in writing, that there are serious conduct or capability issues that must be addressed by the employee, where any recurrence of the matters complained of are likely to result in the employee’s dismissal. A final written warning is usually a precursor to terminating an individual’s employment if their behaviour or performance at work does not improve within the timescale provided.
What does a final written warning mean for the employee?
For the employee, a final written warning will mean that their behaviour or performance at work is, for the time being, under close review. The duration of a final written warning can vary, depending on the nature of the issues involved, although the employee must be given a reasonable period within which to turn things around so as to avoid dismissal.
In some cases, the employee can be offered training or support to assist them with any conduct or capability issues. The employee may, for example, be asked to attend a course on conflict in the workplace or be assigned a mentor to help them improve their standard or rate of work. In other cases, the employee will simply need to ensure that there is no recurrence of the problem complained of, typically for a set period of time whilst the warning is in place.
In the event that the misconduct or poor performance issues are not resolved within any set timeframe, the final written warning will mean that further disciplinary action will be taken and, if findings are made against the employee, they are likely to be let go.
When to issue a final written warning
Instigating disciplinary proceedings against an employee for misconduct or poor performance can often feel like a legal minefield for employers, especially where the matter is sufficiently serious to warrant a final written warning.
The role of a final written warning within the wider disciplinary process is to highlight the serious concerns that the employer has about an employee’s conduct or capability at work, including the changes that need to be made to avoid a decision to dismiss.
However, prior to issuing a final warning, a full and fair investigation into any allegations must be undertaken by the employer. The employee must also be given the opportunity to defend any alleged misconduct or performance issues at a disciplinary hearing, including any mitigating circumstances that may help to explain or justify the allegations. This could include, for example, personal or health issues, a previously good disciplinary record or provocation.
Even if a final written warning is an appropriate and proportionate way of addressing any conduct or capability issues, taking into account all relevant factors that you’ve been made aware of, you will still be giving the employee one last chance to avoid termination of their employment contract. This means that you must clearly explain to the employee what is expected of them and the timeframe within which any improvements need to be made.
Any action plan put in place at the final written warning stage must be reasonable. In some circumstances, you may need to offer training or support to ensure that the employee can meet your expectations within the prescribed time limits. You may even need to make reasonable adjustments to an employee’s working conditions if they’re suffering from a disability, ie; a long-standing mental or physical health condition which affects their ability to carry out their role.
Legal pitfalls of final written warnings
Having issued a final written warning, employers will understandably expect to see a marked improvement in the employee’s conduct or performance, otherwise a decision to dismiss may be deemed unavoidable. However, the onus here to meet these expectations should not necessarily be placed entirely on the individual concerned.
The employer may still continue to owe a duty to help the employee meet the required standards. This could mean providing the employee with training or support, where any failure to do so, especially where capability issues are concerned, could result in any subsequent dismissal being deemed unfair. A failure to provide reasonable adjustments, where legally required to do so, could also result in a finding of unlawful discrimination.
Another potential legal pitfall when issuing a final written warning is a failure on the part of the employer to carefully document their decision-making. The contents of any written warning will be closely scrutinised by an employment tribunal in determining whether or not a fair procedure was followed in the context of any unfair dismissal claim. This means that a failure to set out your reasons for issuing a written warning, as with any subsequent dismissal decision, can seriously harm your ability to defend any claim against you.
A final written warning is your opportunity not only to notify the employee of what changes need to be made if they want to carry on working for you, but also to demonstrate the fairness of your disciplinary procedures. This should include the right of an employee to appeal any decision to give them a final written warning, where gaps or omissions in the disciplinary process can again result in any subsequent dismissal being deemed unfair.
How to issue a final written warning fairly
Many employers will have a written disciplinary procedure in place, either set out or signposted within the employee’s contract of employment. Otherwise, the ACAS Code of Practice on disciplinary procedures sets out the basic requirements of fairness that an employer must follow when instigating a disciplinary process and taking disciplinary action.
The procedure should clearly explain what conduct and capability matters may lead to disciplinary sanctions, including when you might choose to issue a final written warning or even summarily dismissal an employee without a warning.
Your procedure should also include an explanation of how such matters will be investigated, what will happen at any hearing and what steps an employee can take if they don’t agree with any decision made against them. For a disciplinary procedure to be considered fair, there must be an opportunity for the employee to appeal any disciplinary action that you decide to take.
Best practice for managers issuing warnings
Before issuing a final written warning there are four main steps that must be followed as a matter of best practice and in accordance with ACAS guidelines:
- Establishing the facts: before taking any disciplinary action, an employer must first establish the facts. This means that a full and fair investigation must be undertaken, without unreasonable delay, to determine the nature and extent of what is being alleged.
- Informing the employee of the outcome: once you’ve fully investigated the matter and if there’s a case to answer, you will need to inform the employee of this. Even if you feel that your findings at this stage are indefensible, you will still need to arrange a disciplinary hearing to provide an employee with the opportunity to explain their side of the story. They should also be informed of their statutory right, on reasonable request, to be accompanied.
- Holding a disciplinary hearing: at the hearing the employee should be given a reasonable opportunity to ask questions, present any evidence and call their own witnesses. Any questions and submissions can be made either by the employee, or by a co-worker or employee representative on their behalf.
- Deciding on any disciplinary action: after hearing any evidence and arguments put forward by or on behalf of the employee, you must decide on what disciplinary action to take. What constitutes a fair sanction will depend on all the circumstances, although a final written warning must be proportionate to the seriousness of the case, having regard to any prior verbal or written warnings in relation to the same matter, and any mitigating factors.
- You can adjourn before making any disciplinary decision, notifying the employee once a decision has been reached. However, you must always set out your reasons in writing, without unreasonable delay, together with the employee’s right of appeal.
- A final written warning should only be reserved for the most serious or repeated breaches, typically following prior verbal or written warnings. This course of action must also be consistent with any previous disciplinary decisions, and is unlikely to be appropriate if others have been treated less harshly for similar transgressions.
What should a final written warning letter include?
A final written warning is designed to provide the employee with clear instruction on what has happened, what needs to change and what action may be taken if the problem persists. It will also provide the employer with clear documentary evidence of their decision-making process.
Any final written warning letter should ideally include:
- The outcome of the disciplinary hearing, including what findings were made.
- The disciplinary action that the employer has decided to take in response, in this instance to issue a final written warning, and the factors that were taken into account.
- The likely consequences of any further misconduct or failure to improve performance, including dismissal, although the possibility of demotion could also be considered.
- The expected changes in behaviour or improvements in performance that need to be made within any set timescale to avoid dismissal or demotion.
- The nature of any training, support or reasonable adjustments that will be provided.
- The length of time that the written warning will remain valid.
- The employee’s right to appeal, including their right to be accompanied at any appeal.
Any final written warning must be retained as part of the employee’s disciplinary record and kept on their employment file. As a matter of best practice, you may also want to ask the employee to sign and return a copy of the letter as evidence that the employee has received that letter and, in turn, has been informed of their right to appeal your decision.
DavidsonMorris’ employment lawyers are experienced in advising employers on all aspects of workplace disciplinaries and dismissals. We can support you with advice to ensure a fair and lawful procedure is followed and to minimise the risk of tribunal claims. Our specialist HR consultants can also support with conducting workplace disciplinary investigations. For expert advice, contact us.
Sackable offences & gross misconduct FAQs
How long does a final written warning last?
A final written warning should not last indefinitely, but provide the employee with a reasonable period of time within which to show any changes in behaviour or improvement in their performance so as to avoid dismissal.
Can you go straight to a final written warning?
An employer may be justified in going straight to a final written warning, without a verbal or first written warning, if the matter complained of is sufficiently serious. This could be, for example, a serious misconduct or performance issue.
How does a final written warning work?
A final written warning works by giving an employee a prescribed period of time within which to make changes to their conduct or improve their performance. However, any recurrence of matters complained of during this time may result in dismissal.
Can I refuse to sign a final written warning?
Can I refuse to sign a final written warning? If an employee refuses to sign a final written warning, the warning will still be valid. It is sufficient for the employer to give the employee a copy of the warning and retain a copy on their employment file.
Last updated: 12 May 2021