Verbal warnings are one of the potential outcomes of a workplace disciplinary. For employers, it is important to understand how they should be used to avoid falling short of your obligations through a disciplinary procedure.
In this guide for employers, managers and supervisors, we explain the process that should be followed when issuing a verbal warning at work, including what constitutes a legally recognised warning within the context of fair disciplinary proceedings.
What is a verbal warning?
In circumstances where an employer has concerns about an employee’s conduct and/or performance at work, it may be appropriate for that individual to be issued with a verbal warning.
A verbal warning is where an employer verbally informs an employee that in the event that their work, behaviour or actions within the workplace don’t change or improve, the employee may face further, more severe sanctions. A verbal warning at work is usually given as a result of a first, or fairly minor, infringement.
There are two types of verbal warning: informal and formal.
In practice, an informal verbal warning is typically as straightforward as a quiet chat between the employee and their line manager in an attempt to quickly and amicably resolve a relatively minor issue of misconduct or unsatisfactory performance, without recourse to formal disciplinary proceedings.
In cases where formal proceedings are deemed necessary, including a disciplinary investigation and hearing, an employer may still opt to issue a verbal warning, albeit formally, as an appropriate and proportionate means of disciplinary action in response to any findings made.
Common examples of conduct or performance-related issues in response to which an employer may issue either an informal or formal verbal warning include the following:
- Where an employee is consistently late for work
- Where an employee is consistently absent from work
- Where the personal appearance of the employee is not acceptable
- Where an employee is failing to co-operate with work colleagues
- Where an employee has used company equipment for personal purposes
- Where an employee is consistently making mistakes in their work
- Where an employee is struggling to handle their workload
- Where an employee is unable or unwilling to follow instructions.
Verbal warning procedure
If the decision is made to issue a verbal warning, the manner in which this should be done should depend on whether the matter should be approached informally; where the warning is being treated as off-the-record, or whether the warning represents a formal disciplinary sanction.
However, for a warning to be legally recognised, in other words, one that can be relied upon by an employer in the context of any future tribunal claim to show that a fair disciplinary procedure has been followed, any warning should only be issued following a full disciplinary investigation and hearing.
In many cases, an employer will have its own written procedures, typically contained within an employee’s contract of employment or within any staff handbook. However, in the absence of anything in writing, the ACAS Code of Practice on disciplinary procedures sets out the minimum requirements that an employer must follow.
In particular, the Code of Practice sets out the basic requirements of fairness applicable in most cases, and is intended to provide the standard of reasonable behaviour to be applied in most disciplinary situations.
There are four main steps involved:
Establish the facts
Before any disciplinary action is taken, the employer must establish the facts of the case. In other words, a full and fair investigation must be undertaken, without unreasonable delay, to determine the nature and extent of what is being alleged against the employee in question.
The complexity of the investigation will depend very much on the type of allegations made, but can include interviewing the employee and any witnesses, examining any video or audio, and reviewing all relevant documentary evidence. This evidence will need to be collated in advance of any disciplinary hearing.
Inform the employee of the findings
In the event that the employer has decided that there is no case to answer, no further action needs to be taken, other than to inform the employee of this outcome. Further, even in circumstances where the employer has decided that there is a case to answer, no disciplinary action should be taken against the employee without a hearing, not even to issue a verbal warning.
The employee must be notified of the time and place for the disciplinary hearing, to be held as soon as possible following the investigation, while still giving sufficient time for the employee to prepare, typically 3-5 working days.
The notification letter should set out the nature and extent of any alleged misconduct or unsatisfactory performance, as well as the possible outcome if found to be proven, together with any evidence in support, thereby enabling the employee to properly answer the case against them.
The employee should also be informed of their right to be accompanied at that hearing by a work colleague, trade union representative or trade union official.
This right will apply in circumstances where the disciplinary hearing could potentially result in a formal warning being issued to the employee, ie; a warning that will be placed on the person’s record, including a verbal warning. However, to exercise this right to be accompanied, the employee must make a reasonable request, either verbally or in writing, in advance of the hearing.
Hold a disciplinary hearing
At the disciplinary hearing the employer should explain to the employee the basis of the disciplinary issue, presenting any evidence collated during the course of the investigation and giving the employee an opportunity to put their case fully.
The employee should also be given a reasonable opportunity to ask questions, present evidence and call their own witnesses. Any question and/or oral submissions can be made either by the employee themselves, or by any companion on their behalf.
In the event that a new fact or issue arises in consequence of any evidence given during the course of the hearing, the employer may seek to adjourn the matter to another day to allow for any necessary further investigations to take place.
Decide on appropriate action
After hearing all the evidence, and any arguments advanced by or on behalf of the employee, the employer must decide on what disciplinary action to take, if any. In making this decision the employer must consider what is fair and reasonable in all the circumstances.
In particular, when deciding whether a disciplinary sanction is appropriate, and what form it should take, consideration should be given to the following:
- Whether there is an express provision within any written disciplinary procedure, or otherwise, as to what the likely sanction will be in response to the particular conduct or performance issue in question
- Any disciplinary sanction imposed in similar cases in the past, where it is important for an employer to be consistent in the type of warnings issued
- Whether the standards of other employees are acceptable, and that this particular employee is not being unfairly singled out
- The employee’s disciplinary record, including any current warnings, their general work record, work experience, position and length of service
- Any mitigating circumstances that might make it appropriate to adjust the severity of the penalty
- Whether the proposed penalty is reasonable and proportionate in view of all the circumstances
- Whether any training, additional support or adjustments to the employee’s work are necessary to prevent any recurrence of the conduct or performance issued complained of.
In circumstances where the conduct or performance issue is only a first or relatively minor offence, the employer may decide to issue a verbal warning. That said, given that this still constitutes a disciplinary sanction, the employee should be notified of their right to appeal, not least given that any type of warning, verbal or otherwise, will be recorded on their disciplinary record.
Typically, an employer will adjourn after the disciplinary hearing to decide what action to take, notifying the employee in due course. In any event, the employee must be notified in writing of the employer’s decision without unreasonable delay, including the nature of the disciplinary action to be taken.
What should a verbal warning letter include?
As set out above, even though a warning can be issued verbally, any disciplinary action to be taken against an employee must be confirmed in writing and retained as part of their disciplinary record on their employment file.
That said, this written confirmation does not convert the verbal warning into a written warning, rather it is a written record of the verbal warning that has been issued to the employee, and will provide the employer with documentary evidence of this action having been taken.
Any verbal warning template letter should ideally include the following:
- The outcome of the disciplinary hearing, ie; the extent to which any misconduct or unsatisfactory performance has been proven
- What disciplinary action the employer has decided to take in response, ie; in this instance, to issue a formal verbal warning
- What this means for the employee, ie; the likely consequences of further misconduct, or failure to improve performance, including being subsequently issued with a first or final written warning
- What changes in behaviour or improvements in performance need to be made within any set timescale
- For how long the verbal warning will remain current
- The employee’s right to appeal, including their right to be accompanied at any appeal hearing by a work colleague, trade union representative or trade union official
How long does a verbal warning last?
The level and duration of verbal warnings can vary depending on any express provisions contained within the employer’s disciplinary procedures. Although there is no specific guidance within the ACAS Code of Practice on how long a verbal warning should remain current, any type of warning, whether verbal or otherwise, should not be unreasonably long.
Further, as with written warnings, it is always good practice for an employer to notify an employee of the timescale within which they will need to demonstrate any required changes in behaviour or improvement in performance.
As employment law specialists, we can assist if you have any queries relating to disciplinary procedures in the workplace, such as when and how to issue a verbal warning, and what to do if a matter escalates and requires further discipline. Speak to our experts today for advice.
Verbal warning FAQs
What is a verbal warning?
Verbal warnings are used to inform an employee that their work, behaviour or conduct must improve or change, or they face formal disciplinary action.
Should a verbal warning be confirmed in writing?
It is advisable to confirm a verbal warning in writing for your records and to support any resulting or related disciplinary action against the employee.
What is the difference between a verbal and written warning?
A verbal warning is usually the first stage in an employee disciplinary. A written warning would then follow if the employee fails to improve their behaviour, actions or standard of work.
How long does a verbal warning last UK?
Verbal warnings generally stay on the employee's record for 3 to 6 months. Employers should make it clear how long the verbal warning will last.
Last updated: 23 September 2022