Final written warning for first misconduct offence

Following a disciplinary hearing, it may be possible in some cases for you to skip the first written warning stage and move straight to issuing the employee with a final written warning. Our letter covers this.

Warning stages

Assuming you’ve first held a disciplinary hearing and otherwise followed a fair investigation and disciplinary process, where you uphold the misconduct allegations against the employee, there are normally three stages involved in terms of the disciplinary sanction you impose, as outlined in the Acas Code of Practice on Disciplinary and Grievance Procedures. These are a first written warning, a final writing warning and, finally, dismissal with notice. In gross misconduct cases, you can proceed directly to dismissal without notice. However, it’s not always necessary to follow the three-stage process in non-gross misconduct cases. Where the employee’s first misconduct offence is sufficiently serious, you may be able to move directly to issuing a final written warning in certain cases. The Acas Code supports this, and it says it may be appropriate to do this where the employee’s actions have had, or are liable to have, a serious and harmful impact on your business. Our Disciplinary Procedure sets out the three stages above, but it also allows you to move straight to a final written warning where there’s been a first instance of serious misconduct.

Suitable misconduct cases

In determining whether it’s appropriate to move straight to the final written warning stage, each case must be considered on its own merits and any relevant circumstances should also be taken into account, such as whether the employee had health or domestic problems, any provocation and whether there was justifiable ignorance on the part of the employee of the rule or standard involved. So, it’s not possible to simply draft a list of serious misconduct offences that you can rely on here, as you’ll need to consider the individual facts and surrounding circumstances of each case as it arises. As a broad rule of thumb, do consider cases where the employee’s misconduct has had (or has the potential to have) particularly serious consequences, for example, where it raises serious safety issues or has placed your business at risk of financial harm. Conversely though, if you issue a final written warning in circumstances where it’s out of all proportion to the misconduct offence, you may be in breach of the implied term of mutual trust and confidence, so there’s a balancing act to be done here.

Final written warning

Our Final Written Warning for First Misconduct Offence follows the same basic structure as our standard Written Warning and Final Written Warning, but it clearly sets out that, taking into account the seriousness of the employee’s misconduct, you’ve deemed it appropriate to move directly to a final written warning on this occasion. You can also refer here to the serious or harmful impact that the employee’s actions have had on the business, if that’s indeed the case, so there’s optional wording to cover that too.