Verbal & Written Warnings
The fact is, you really can't be sure how the relationship between you and your employees might develop. You may spend many happy years with a group of reliable un-troublesome employees, however, on the other hand the opposite may be the case.
If one (or more) of your staff regularly breaks company rules, you'll probably be forced into taking disciplinary action. Issuing a verbal warning should be the first step you take, usually followed by a written warning if there is no improvement. However, before you even contemplate taking any form of remedial action against your employees, you will first need a set of guidelines by which the disciplinary structure of your company is to be upheld.
- Code of Conduct
- Formal Investigation
- Verbal Warnings
- Written Warnings
- When is a Warning Spent?
- Further Reading
Code of Conduct
As stated in the introduction, before embarking on any aspect of the disciplinary process, you need a set of guidelines, which in our view should be considered as a 'Code of Conduct'. It is important to remember that you need to ensure that your employees are aware of what you consider to be misconduct or unreasonable behaviour and without a 'Code of Conduct' your employee(s) will not know what you expect of them? Acknowledging this, you should draw up a set of rules, which indicate clearly what you and your company believe to be unreasonable behaviour. You must also be clear as to the consequences if the rules are broken. Avoid ambiguity and confusion in the message you are trying to portray, and importantly ensure the 'Code of Conduct' is reasonable.
When drawing up disciplinary rules, the aim should be to specify clearly and concisely those that are necessary for the efficient and safe performance of work and for the maintenance of satisfactory relations with the workforce and between the workers and management. Once you have established a set of rules, you will need to know how to apply them. This involves conducting disciplinary and grievance procedure, and means you will need to act appropriately to avoid a Tribunal finding a case against you for unfair dismissal.
Prior to going down the route of instigating disciplinary action against an employee, it is prudent to instigate a Formal Investigation.
Formal investigations should be carried out by the most appropriate manager who is not directly involved with the incident being investigated. This manager may involve others to assist with the investigation process. All the relevant facts should be gathered promptly as soon as is practicable after the incident. Statements should be taken from witnesses at the earliest opportunity. Any physical evidence should be preserved and/or photographed if reasonable to do so.
A report should be prepared which outlines the facts of the case. This should be submitted to the appropriate senior manager/Director who will decide whether further action is required. Where appropriate, this report may be made available to the individual and their representative.
In most circumstances where misconduct or serious misconduct is suspected, it will be appropriate to set up an investigatory hearing. This would be chaired by the appropriate Senior Manager/Director, who would be accompanied by another manager. The investigating manager would be asked to present his/her findings in the presence of the employee who has been investigated. Witnesses should be called at this stage, and the employee allowed to question these witnesses. The employee has a right of representation at this hearing.
Following the full presentation of the facts, and the opportunity afforded to the employee to state his side of the case, the hearing should be adjourned, and everyone would leave the room except the senior manager/Director hearing the case, and the other manager. They would discuss the case and decide which of the following option was appropriate:
- take no further action against the employee
- recommend counselling for the employee
- proceed to a disciplinary hearing
If it's decided to proceed to a disciplinary hearing, there is a procedural practice, which must be adhered to at all times - as follows:
- invite the employee to a disciplinary hearing - in writing (on letter headed paper), you can insist on confirmation of his/her attendance. It is imperative you also offer them the opportunity to be attended at the hearing with either a work colleague or a trade union official.
- retain copies of all correspondence within the personal file of the employee, and also forward a copy to your HR department (if you have one).
- give a reasonable timescale for the hearing to take place. You must give a minimum of 24 hours notice. If you operate in a non-union environment - but the employee is a member of a union and insist upon their representative being present - it is prudent to write to the union official and discuss a reasonable date for the hearing.
- if the offence is serious enough to warrant it, you can suspend the employee until the date of the hearing, but remember, if you do so you will have to suspend them on full pay.
- at the hearing, ensure you have a note taker who will also act as your witness.
- upon giving your decision, inform the employee that he/she has the 'right to appeal', to whom, and the timescale in which to do so.
- upon completion of the hearing write up the minutes of the hearing (including your decision), and ensure that the letter is given to the employee as soon as is possible.
If you've already had cause to discipline an employee and this second disciplinary hearing is for a different offence, this second hearing must be dealt with seperately with your decision reflecting that.
Generally speaking relatively minor acts of misconduct (timekeeping etc.) are dealt with by issuing a verbal warning but more serious matters may require this stage to be skipped and a first or final written warning issued. It is good practice to confirm verbal warnings in writing to ensure that there is no misunderstandinglater.
The issue of a verbal warning confirms the decision of the hearing and outlines the terms in respect of the expected improvement in conduct. As a result of the warning issue, the employee's conduct should continue to be monitored and, after a reasonable time and subject to the improvement of the employee's conduct, a letter should be sent acknowledging this improvement. If the employee's conduct does not improve a Notice of Disciplinary Interview should be sent to the employee.
A verbal warning is a generally considerd to be an informal process. It is a chance for employers to encourage staff members to improve their conduct. Often a word in the ear is sufficient to remedy the situation. Overall, verbal warnings should be associated with General Misconduct. These types of offences are minor or one off offences and would not result in something serious happening to your business as a consequence of the employee's actions. They may include:
- being late for work.
- using the telephone for personal calls.
- using a company vehicle for unauthorised personal use.
- under performance.
- failure to carry out rudimentary tasks associated with the employees's work role.
Written Warnings are the next stage up from a verbal warning, the disciplinary invitation and rights of the employee don't change. Serious misconduct goes under this category, here you would treat the offence very seriously. Often this type of misconduct may be due to an employee continuing to offend, such as:
- continuously late.
- using the phone for personal use after repeated warning not to.
- repeated unauthorised use of a company vehicle despite warning not to.
- repeated under performance despite measures taken to alleviate the situation.
- failure to adhere to procedural practice in contravention of legislation or health and safety.
If an employee continually repeats an offence then it graduates more towards gross misconduct.
In addition, gross misconduct can also occur if an employee's offence may jeopardise the functioning of your company in any way or through total unreasonable behaviour, such as:
- physical violence.
- alcohol or drug abuse.
- deliberate damage to property.
- serious infringement of health and safety regulations.
- theft and/or fraud.
- negligence which causes serious consequences for your company as a result of the error.
The Procedure for disciplinary hearings can be viewed at the Disciplinary Page within this section.
Written Warnings - What You Must Do To Comply
In all situations relating to unfair dismissal you are required to produce evidence that you have acted fairly and reasonably when selecting a particular employee for dismissal or termination of employment. Therefore to comply with current legislation and laws you must confirm;
- the company has acted fairly.
- the company has acted consistently.
- the level of evidence for carrying out the dismissal is sufficient and reasonable.
- the manner in which the dismissal has been carried out is reasonable.
- the company minimises the risks of heavy legal fees and payments to dismissed employees.
Where a company employs staff it should always have systems in place which record evidence and establish that it acts in a uniform and fair manner towards its employees. You need to make it clear why a written warning has been issued; whether an improvement in conduct (improvement notice) is required; what the likely consequences are of failure to make an improvement; and how long the warning is likely remain on the employee's record.
When is a Warning Spent?
It normally stays on their record for between six and 12 months - it's at the employer's discretion. You should follow up any warning with a review period, during which the individual receives appropriate support and their performance can be monitored.
A final piece of advice
You need to make it clear to employees what your disciplinary procedure is. The more they know about the disciplinary process, the less likely they are to commit an offence. If your staff feel they've been treated fairly, they are also much less likely to dispute any punishments - reducing the likelihood of tribunal claims.
For further information on the disciplinary process, please visit the links below.