Final Written Warning: Guide for UK Employers

A final written warning is a formal step in the disciplinary process, issued when an employee’s misconduct or performance issues are serious or persistent. It acts as a last opportunity for the employee to improve their behaviour or meet required standards before further action, such as dismissal, is considered. The warning typically outlines the specific issues, the expected improvements, a timeframe for review and the potential consequences of failing to comply.

There are a number of obligations employers have to meet when issuing a final written warning. Issuing a final written warning must align with fair and transparent disciplinary procedures, including those outlined in the ACAS Code of Practice. A clear and detailed explanation of the allegations and evidence must be provided, and the employee should have the opportunity to respond during a disciplinary hearing. Employers should also ensure that warnings are proportionate to the misconduct and that consistency is maintained across similar cases to avoid claims of unfair treatment.

Failure to follow proper processes can lead to legal challenges, including claims of unfair dismissal or discrimination. Employers must also monitor and support the employee’s efforts to improve following the warning, documenting progress thoroughly.

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 is 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.

 

Can you go straight to a final written warning?

 

An employer can go straight to issuing a final written warning, but only in specific circumstances where the misconduct or performance issue is deemed serious enough to warrant it. This approach is typically taken when the behaviour is not severe enough to justify immediate dismissal but is too significant to issue a lesser warning. For example, repeated lateness, inappropriate conduct, or failure to meet important performance targets could justify a final written warning if the impact on the organisation is substantial.

However, employers must ensure they follow fair procedures in line with the ACAS Code of Practice. The decision to issue a final written warning must be based on a thorough investigation and a formal disciplinary hearing where the employee has the opportunity to respond to the allegations. Employers should also consider any mitigating factors, such as personal circumstances or a previously good record, before deciding on the level of disciplinary action.

Going straight to a final written warning without proper process or justification may be considered unfair and leave the employer vulnerable to legal challenges, including claims of unfair treatment or constructive dismissal. Transparency, consistency, and documentation are essential to ensure the decision is fair, proportionate, and legally compliant.

 

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.

 

Need assistance?

 

We help employers with all aspects of workplace disciplinaries and dismissals. We can support you to ensure a fair and lawful workplace procedures are 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.

 

Final written warning FAQs

 

What is a final written warning?

A final written warning is a formal step in the disciplinary process, issued when an employee’s misconduct or poor performance is serious or ongoing. It serves as a final chance to improve before potential dismissal.

 

When is a final written warning issued?

It is typically issued after previous warnings have failed to result in improvement or when the misconduct or performance issues are too serious to justify a lesser warning but not serious enough to warrant immediate dismissal.

 

How long does a final written warning last?

The duration depends on the employer’s disciplinary policy but is usually between six and twelve months. Employers must make the timeframe clear when issuing the warning.

 

Can an employee appeal a final written warning?

Employees have the right to appeal if they believe the warning is unfair, not justified, or if new evidence has come to light. Employers must provide a clear appeals process.

 

Does a final written warning mean dismissal is guaranteed?

Dismissal is not automatic. If the employee improves and meets the required standards during the warning period, further action is unlikely. However, failure to improve may lead to dismissal.

 

What should be included in a final written warning?

It should outline the specific issues, the expected improvements, the timeframe for review, and the consequences of failing to improve, such as dismissal.

 

Can a final written warning be extended?

Extensions are uncommon and must be handled carefully. Employers should refer to their disciplinary policy and seek legal advice if considering an extension.

 

What happens if an employer doesn’t follow proper procedures?

Failure to follow fair disciplinary procedures can result in legal challenges, such as claims of unfair dismissal or discrimination, particularly if the warning leads to dismissal.

 

Is a final written warning permanent?

Final written warnings are not permanent. Once the specified period has passed, the warning is usually removed from the employee’s record unless further misconduct occurs.

 

Glossary

 

Term	Definition
Final Written Warning	A formal disciplinary action issued to an employee as a last step before potential dismissal for serious misconduct or performance issues.
ACAS Code of Practice	Guidance provided by the Advisory, Conciliation and Arbitration Service to ensure fair handling of disciplinary and grievance procedures.
Misconduct	Inappropriate or unacceptable behaviour by an employee that breaches workplace policies or standards.
Serious Misconduct	Behaviour that is more severe than minor infractions but does not justify immediate dismissal, such as repeated lateness or misuse of company resources.
Disciplinary Hearing	A formal meeting where the employer presents allegations against an employee and the employee has the opportunity to respond.
Mitigating Factors	Circumstances that may reduce the severity of disciplinary action, such as a previously good record or personal difficulties.
Immediate Dismissal	Termination of employment without notice, usually for gross misconduct.
Proportionate	An action that is fair and appropriate to the level of misconduct or performance issue.
Constructive Dismissal	When an employee resigns due to their employer’s behaviour breaching the terms of their contract, such as unfair treatment.
Unfair Dismissal	Termination of employment that does not follow fair procedures or is not justified by the employee’s actions.
Investigation	The process of gathering evidence and facts before taking disciplinary action against an employee.
Consistency	Ensuring similar cases are handled in the same way to avoid claims of unfair treatment or discrimination.
Disciplinary Process	The structured procedure an employer follows to address misconduct or performance issues, including investigations and hearings.
Proportionality	Ensuring disciplinary action matches the severity of the issue and considers all relevant factors.
Transparency	Open and clear communication about decisions and actions taken during the disciplinary process.