When an employer issues an employee with a Final Written Warning letter, it is a very significant development because it is signaling a strong likelihood that in the event of a further issue, the employee could be dismissed.
It is for this reason that it is important that when an employer issues a Final Written Warning (FWW) letter that they do it properly – so what does that mean.
Let’s explore the issues associated with ensuring that the FWW letter is issued correctly and that in the event of a further transgression, the employer can rely on the letter in the event that they want to proceed with a termination. Also, it is possible that the FWW letter will be evidence at some stage in a potential Employment Tribunal.
Often employers will say that the employee is on a “final warning” – and in the course of giving advice to an employer in a disciplinary situation, the first question to ask is – send over a copy of the Final Written Warning letter. If there is no letter, the chances are that the employee cannot rely on the issuing of a final warning.
What to look for in a Final Written Warning letter…
Disciplinary hearing – has the employee been issued with a Final Written Warning letter having been asked to attend a formal disciplinary hearing and
- Was the hearing held in accordance with the Company’s disciplinary procedure
- Was the employee given the right to be accompanied by either a work colleague or a Trade Union Rep
- Was the employee given 24 or 48 hours notice of the hearing?
- Was the employee made aware of the issues that would be discussed at the hearing – conduct, failure to follow procedure, absence, inappropriate comments etc.
You need to answer Yes to all the above questions.
Furthermore, following the conclusion of the hearing has the employee been issued with a letter that confirms the issue of a Final Written Warning?
The answer must be YES.
What does a Final Written Warning letter look like?
Many employers rely on standard template letters for FWWs and increasingly, AI is being used to generate letters.
Whilst template letters and AI have their place, “one solution doesn’t fit all” so you must be aware that the letter will need to be edited/amended/reviewed to reflect the circumstances.
It is also likely that the FWW letter will be referred to in the event of a further transgression from the employee and at worst, the next stage might be a termination of employment so it is imperative that the letter has been written carefully with correct content and structure.
A typical FWW letter structure looks like this……
Who was present and dates – record who was present – don’t just use first names and often use job titles. If the employee was accompanied at the meeting – record the name but if the employee declined the right of accompaniment – make that clear. If someone was present to take notes or from HR – record who was there.
Also, record the date of the hearing and where it was held – or perhaps that it was held over Teams. If the meeting was adjourned and re-convened on a different date – record the dates.
Brief background – set out some brief background and context – ie why was the hearing convened and what were the allegations. It is possible that the hearing had been convened following an investigation or period of suspension – if so, record the facts.
Set out a sufficient amount of detail to give context.
The details – Record the conclusion and findings – also record the employee’s responses – summarise their explanations and whether they offered any mitigating circumstances. Be aware that the employee may cite mental health in mitigation.
The outcome – confirm the outcome of the hearing ie confirm that a FWW letter is being issued and set out clearly how long the warning will remain on file. Commonly, a Final WW will be on file for 12 months but it can vary.
The consequences – having advised the period that the FWW will be on file, clearly set out what the consequences of a further transgression will be. In its simplest form if the employee is found guilty of committing the same offence within the period of the warning letter, the likely outcome will be termination. This needs to be set out in clear and unambiguous terms.
Right of appeal – the employee has a statutory right of appeal so clearly set out the right of appeal in the letter and the timescales – normally within 5 days but check the disciplinary procedure.
Employee acknowledgement – if the employee chooses not to appeal, ask the employee to sign a proforma to acknowledge receipt and acceptance of the letter and to confirm that they have been issued with a FWW letter. If they refuse, record their refusal.
Finally, the purpose of a disciplinary hearing is to determine the sanction – this should not be decided before the hearing because that means that the outcome has been pre-determined and means that the employee’s explanations have been ignored or not considered.
Teams or in-person
Disciplinary hearings over Teams are fine as well as practicable and cost effective when people are dotted all over the country but if everyone is based in the same office, do it in-person if possible. Some employers choose an off-site location – also fine.
If using Teams, the hearing can be recorded and use the record and transcribe facility but only record if all parties consent and are aware that it is being recorded.
Without being over dramatic, a FWW letter is likely to be evidence in an Employment Tribunal so, get the detail right, and ensure the letter looks professional – preferably on Company letter head, signed and dated.
If in doubt seek advice about the disciplinary process if it is likely to end in the employee being issued with a Final Written Warning letter.
Emphasis on the word ”written” – merely telling an employee that this is their final warning is unlikely to be sufficient if challenged in a Tribunal.
Adrian Berwick offers HR support to SMEs and GP Surgeries and if you want any advice or guidance on the issues raised in this article, please either contact me on 07885 714771 or adrian@abhrsolutions.co.uk
