In all but the most extreme cases of misconduct – termed gross misconduct – an employee is unlikely to be subject to dismissal for a first offence at work. Instead, they will be entitled to receive one or more warnings prior to termination of employment. Exactly how many warnings an employee is entitled to receive before dismissal will depend upon a number of factors, including the nature of the issue and individual employer’s guidelines.

What is the correct dismissal process?

A disciplinary situation in the workplace can arise in various ways and may be dealt with by the employer under separate policies (usually found in the staff handbook or on a company intranet). For example,

• where an employee is accused of some sort of misconduct they will be dealt with under the disciplinary process; or
• where an employee not performing satisfactorily, they may be dealt with under a capability process.

In addition, employers can deal with poor attendance under a separate absence management process. Where absence is caused by genuine illness or disability, attendance issues should not be regarded as a disciplinary matter.

Not all employers will have different processes for different types of disciplinary issue – there may just be one overarching disciplinary policy, but it is important that individuals are clear about which process applies to them in their situation and that the employer follows the applicable process correctly.

Appropriate action following a disciplinary hearing

Where allegations of misconduct have been made, an employer will first investigate, and then hold a meeting with the employee. During this meeting, the employee will be able to voice their side of the situation. Following this, the employer will have to decide whether or not further disciplinary action is justified.

If the misconduct is confirmed, it is usual for a written warning to be issued to said employee. This will remain “live” for a certain period (which should be specified in the employer’s disciplinary policy or rules) e.g. three or six months. Generally, any further act of misconduct within that time would then result in a final written warning.

Once a first written warning has lapsed then it will not generally affect any future misconduct, which should be considered for disciplinary purposes in isolation from the original act of misconduct. This means an employer cannot “tot up” warnings against the employee after they have lapsed.

However, in some limited situations it could be legitimate for an employer to take into account an employee’s previous behaviour. Please bear in mind that this is a complex situation – get in touch with us for further guidance.

Skipping to a final written warning

If a first act of misconduct is very serious but there is some mitigation making immediate dismissal inappropriate, then an employer can potentially decide to skip the first written warning and go straight to issuing a final written warning.

Where the employer has a well drafted disciplinary policy, it should be made clear that the employer has the discretion to skip to a final warning in appropriate circumstances.

What should a written warning look like?

A first or final warning will ideally set out:

• the nature of the misconduct (or poor performance)
• the change or improvement required, within what timescale
• how long the warning will remain current
• in the case of a final warning, the possible consequences of further misconduct or failure to improve (such as dismissal, loss of seniority or change of role).

Gross misconduct

Where the act of misconduct is so serious in itself or has such serious consequences that it amounts to gross misconduct, an employer is entitled to dismiss without giving a warning at all and without notice (or payment in lieu of notice). This is termed “summary dismissal”.

However, a reasonable employer will always follow a fair disciplinary process – including an appropriate investigation – before dismissal for gross misconduct. In addition, staff rules should give examples of acts which the employer may regard as gross misconduct. These are subject to variance depending upon the nature of the employer’s business, but examples include theft, fraud, violence serious insubordination or gross negligence.

Dismissal procedure is subject to individual employer

The best practice guidance laid down in the ACAS Code of Practice on disciplinary and grievance procedures recommends the structure of first and final warnings as detailed above. Employers are therefore well advised to follow this, and any less lenient procedure is likely to be frowned upon by an employment tribunal, potentially leading to a finding of unfair dismissal.

However, the actual process which an employer follows may vary if, for example, they have a longer, more complicated procedure which allows for a greater number of warnings before dismissal. It is therefore important to read your employer’s disciplinary/performance management policy to understand the exact process they are required to follow.

Also note that some employers may have contractual disciplinary policies which actually form a term of employee’s contracts of employment. If this is the case, the employer has much less freedom to deviate from the procedure as it is laid down in the contract. Any failure by the employer to go through the steps of the procedure properly would also amount to a breach of contract.