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Warnings are one of the most important tools for your business when looking to improve an employee’s conduct or performance. However, it is easy to misunderstand how warnings should work in practice and what a formal warning actually means in a misconduct process. You should use formal warnings to warn employees that their performance or conduct is not satisfactory in some way and that you may dismiss them if there is no improvement. This article sets out: 

  • what a formal warning is and what they should include; 
  • whether you can dismiss an employee after multiple warnings; and 
  • whether warnings expire or not.

What Is a Formal Warning?

A formal warning is usually used as an outcome of a disciplinary or poor performance process. It tends to be when you want to send a message to the employee that their conduct or performance does not meet your business’ expectations. Additionally, it provides a legal basis for dismissal if there is no change in the employee’s conduct or performance. If your concerns are not so serious as to require a formal warning, an informal discussion or chat can be an alternative option to consider. 

You can deliver formal warnings in writing or verbally. However, you should always record any warnings in writing. This means that there are no misunderstandings between you and your employee. Further, it strengthens the legal basis for dismissing the employee at a later date if their conduct or performance continues to be unsatisfactory.

What Should a Formal Warning Include?

In terms of what a formal warning should include, one key principle is to be very clear about what the warning is for and what it represents. An employee must be able to know from the warning that their job is at risk if they do not improve their performance or stop their bad behaviour. 

Some things to consider when drafting a formal warning include:

  • setting out exactly what the warning is for;
  • setting out the possible consequences if there is no change in the employee’s behaviour or performance; 
  • considering what is reasonable in terms of what the actual behaviour or poor performance was;
  • stating the time period for the employee to improve their performance or stop a bad behaviour; and
  • referencing any workplace policies or the employee’s agreement if relevant. 

Remember to always follow whatever process is set out in your business’ policies or practices or in the employee’s employment agreement. Failing to follow a prescribed process, or deviating from the way you run a process or give a warning to another employee, may open the risk of a personal grievance against your business. 

Can You Dismiss an Employee After Multiple Warnings?

Yes, employers can usually dismiss an employee after multiple warnings have not resulted in any change to the employee’s conduct (or misconduct) or poor performance. However, whether you can do so does depend on the specific circumstances of the employee’s performance or conduct. You should seek specific advice from an employment lawyer if you are considering dismissing an employee after multiple warnings. 

It is usually a good idea to give an employee a final warning if they have failed to improve their performance after an initial warning(s). This makes it extremely clear to the employee that their employment is at risk. This final warning should certainly be made in writing. 

Note that warnings do not always justify dismissal or even a final warning. For example, you cannot rely on a separate type of misconduct to justify a final warning for an employee. Also, if a warning is too old or has expired, you may not be able to rely on it for a dismissal. 

Do Warnings Expire?

Yes, warnings do expire over time in terms of relying on them for dismissal. Even if you have not explicitly set out an expiry date or period, warnings can still expire. The general principle is that employers cannot rely on warnings more than a year old when looking to dismiss an employee based on those warnings. 

Depending on the facts, there may be a few exceptions to the rule that employers cannot rely on expired warnings. If a warning has only recently expired, for instance, an employer may be able to rely on it in some circumstances. 

Key Takeaways

Giving formal warnings to an employee can be an important step in correcting their conduct or improving their performance. There are a number of things to consider when giving a formal warning, including setting out: 

  • exactly what the basis for the warning is; 
  • what you expect of the employee; and
  • the fact that there may be serious consequences if there are no improvements to the employee’s behaviour or performance. 

Warnings can expire, particularly if they are more than a year old. If you want to know more about managing employee disciplinary issues and giving formal warnings in a productive and informal way, contact LegalVision’s employment lawyers on 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

What is a formal warning?

It is when a warning to an employee to inform them that their conduct or performance is not satisfactory and that if the performance or conduct is repeated, they may be dismissed. 

Can employees be dismissed after multiple warnings?

Yes, but there are some exceptions. Note that the warnings should be for the same thing (poor performance, specific misconduct, and so forth), and they should be very clear to the employee in question. 

Do warnings expire?

Yes, warnings can expire. If the warning’s time period is not explicitly stated, they are generally expected to expire after a period of a year. However, this depends on the context of the warning. 

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