DISCIPLINARY PROCEEDINGS - 22.12.2021

When can you move straight to a final written warning?

Three-stage or two-stage process?

Having conducted a disciplinary hearing, and assuming you uphold the misconduct allegations, most disciplinary procedures provide for a first written warning, a final written warning and dismissal with notice as the three stages of the process (but with summary dismissal available in cases of gross misconduct) (see Follow up ). A similar three-stage process can be found in most capability procedures used to deal with poor performance issues (see Follow up ). The Acas Code of Practice on Disciplinary and Grievance Procedures recommends that employees should usually be given at least one chance to improve before a final written warning is issued, as it states that “where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning” . However, the Acas Code also recognises that it’s not always necessary to follow the three-stage process as it goes on to state that “if an employee’s first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation” .

Pro advice. Ensure your procedures are drafted flexibly, so that you can move straight to a final written warning (see Follow up ) in serious cases.

Final written warning cases

The Acas Code contains no further guidance on when misconduct or poor performance is “sufficiently serious” to justify skipping the first written warning stage. However, the non-statutory Acas Guide on Discipline and Grievances at Work makes clear that each case must be looked at on its own merits, and any relevant circumstances should be taken into account, such as health or domestic problems, provocation and justifiable ignorance of the rule or standard involved. The Guide goes on to give the example of an employee who guarantees impossible delivery dates to a key customer, who then threatens to take their business elsewhere when the dates aren’t met. In one scenario, where the employee admits their training covered the importance of agreeing realistic delivery dates with their manager, and the manager had explicitly stressed that the dates must be agreed with them before informing the customer, the conduct is viewed as sufficiently serious to justify a final written warning , because of the possible impact on the business. However, in another scenario, where it’s found the employee had received no training and the manager had said they were too busy to help with setting delivery dates, no disciplinary action is taken and instead there’s a review of management standards on supervision/training.

Pro advice. Look out for cases where the employee’s misconduct or incompetence has particularly serious consequences, e.g. it has placed the business at serious risk of financial harm or raised serious safety issues, but also take into account all relevant circumstances.

Pro advice. Be aware that you may be in breach of the implied term of mutual trust and confidence if you use warnings oppressively for very minor misconduct or if the warning you issue is out of proportion to the alleged offence.

Disciplinary procedure

Capability procedure

Final written warning for first offence