18 March 2013

Issuing final warnings: The correct approach

Issuing final warnings: The correct approach

Having a clear, staged and understandable disciplinary response to conduct and capability issues is essential to any business regardless of size. In the printing industry this is particularly relevant for companies with a higher ratio of junior staff to management, where such procedures are more likely to be invoked simply because of the number of inexperienced staff.

A final warning or final written warning should always be issued strictly in line with a company's disciplinary procedures. Overzealously or unfairly handing out final warnings could potentially cause headaches down the line should the employee later be dismissed and claim unfair dismissal.

There have been recent developments in this area which suggest that it would now be good practice for companies to have more exhaustive definitions of the employee failings that lead to final warnings.

The reason being that if a company improvises and hands out the warning, then dismisses later for a less serious offence, an Employment Tribunal (ET) is obliged to consider whether the final warning was 'manifestly unreasonable' in the first place. If it was then the dismissal for the less serious offence alone would likely mean that the employee has been unfairly dismissed.

In addition adequate training and induction must be given to ensure that any failings by the employee leading to a final warning are not for a lack of guidance from the management.

To illustrate this point imagine a junior print assistant has "messed up" an important job in a manner not covered by the existing disciplinary policy; the line manager takes the decision that the issue is serious enough to warrant a final warning, but not so serious as to dismiss the employee.

Several months later the same employee makes a minor mistake but one that is a disciplinable offence under the company's policy. This time the manager has had enough and uses the fact that the assistant is on a final warning to use their latest mishap as cause for dismissal when taken together with the final warning offence.

If the final warning was issued either too casually, in contradiction of the company's own policies or the mistake arose because of lack of training, it may amount to being unfair.

The former assistant then brings a claim for unfair dismissal. The ET considers that the final warning should not have been issued and so looks only at the minor mistake - the actual incident that triggered the dismissal. Taking this incident alone it would not be reasonable to dismiss the assistant for the minor offence and therefore finds the dismissal to be unfair. This would be a hefty price to pay for an innocent misjudgement.

How then can this be avoided?

• By ensuring that the company's policy on issuing warnings is clearly set out and written in a way that will cover as many eventualities as possible;
• By ensuring that line managers follow the final warning procedures accurately;
• By ensuring that employees are familiar with and can locate such procedures; and
• By ensuring that employees are adequately trained and inducted for the roles they carry out.