Employers often fail to give guidelines to staff on what to include in an oral or written disciplinary warning letter. A badly prepared misconduct warning letter can render a dismissal unfair. Bar Huberman sets out the basic ingredients for a misconduct warning letter.
1. Confirm the decision in writing
As soon as possible after a misconduct hearing, the employer should confirm its decision in writing in a disciplinary letter. Simply telling the employee at the disciplinary hearing that you are issuing a formal warning, even where it is an oral warning, is not enough.
The Acas code of practice on disciplinary and grievance procedures states that, after a meeting to discuss a disciplinary issue, the employer should inform the employee of any disciplinary or other action it is taking in writing.
Tribunals take the code into account when considering relevant cases, and can adjust awards made by up to 25% for an unreasonable failure to comply with it.
2. Explain the nature of the misconduct
The misconduct warning letter should provide a summary of the employee’s misconduct, including when the offence occurred.
For example, a warning for poor timekeeping could set out:
- the dates on which the employee arrived late for work;
- how late the employee was on those occasions;
- the employee’s failure to provide a satisfactory explanation for the lateness; and
- what impact the misconduct had on the employee’s work and colleagues.
3. Set out the improvement required
Issuing warnings for misconduct
The misconduct letter must explain what the employee should do, or not do, to meet the expected standards of conduct.
For example, a disciplinary letter issuing an employee with a first written warning for being rude to a customer could explain the expected standards of behaviour when dealing with customers.
It could also state that the employee’s interaction with customers will be monitored closely over the next three months.
The letter could include a copy of the organisation’s policy on expected standards of behaviour.
4. Point out the possible consequences of a failure to improve
The misconduct warning letter should set out what will happen if the employee fails to improve his or her conduct within the required timescale, for example that the next stage of the disciplinary process and the possible disciplinary sanctions will be triggered.
In JJ Food Service Ltd v Kefil, the Employment Appeal Tribunal held that a dismissal was unfair in part because an earlier informal warning about Mr Kefil’s management style did not say that if he continued to manage in this way he might be dismissed.
5. Specify the length of the warning
The employer should confirm the period of time for which the employee’s warning will remain on file.
According to p.33 of the guidance accompanying the code, a warning should be disregarded for disciplinary purposes after a specific period.
6. Confirm the right of appeal
The misconduct letter should confirm the employee’s right of appeal, and include what steps the employee should take if he or she decides to appeal the decision.
Model HR documents
Points to include are:
- to whom the appeal should be made;
- within what time frame; and
- what the appeal should cover.
7. Keep a record of the warning
The disciplinary letter should be kept on the employee’s file while the warning remains current.
This means that, should the employee commit further offences during this period, the employer will be able to make decisions taking into account all relevant facts, even if the employee’s line manager at the time of the original misconduct has left the business.
The employer could ask the employee to sign and return a copy of the misconduct warning letter. This will mean that the employer has a record that the employee received it.