Where an employee has committed misconduct or is performing poorly, the employer must consider the most appropriate sanction to impose, taking into account the following factors:
- The gravity of the poor performance or misconduct;
- Any mitigating factors or circumstances put forward by the employee, or known to the employer;
- Whether a disciplinary sanction is reasonable; and
- Whether any disciplinary sanction to be imposed is in line with sanctions that have been issued to other employees in similar cases.
The employer must notify the employee of the sanction without unreasonable delay, in writing and make clear the reasons for imposing the sanction. The employee must be given the right to appeal.
In cases of minor poor performance or misconduct ACAS Code of Practice on Disciplinary and Grievance Procedures (“ACAS Code”) suggests that informal sanctions be imposed, by way of a quiet word or an informal verbal warning. However, if the poor performance continues, more formal sanctions will be necessary.
Verbal warnings – Verbal warnings are often regarded as the first stage of formal disciplinary proceedings. The issuing of a verbal warning should be recorded in the employee’s personnel file and should normally last no more than 3 months. The employer must inform the employee that the warning is a formal disciplinary action and that if they fail to improve their performance or conduct it will result in further disciplinary actions, and potentially dismissal.
- First written warning – If the employee’s performance or conduct does not improve the employer should issue a first written warning. When issuing an employee with a first written warning the employee should be informed that this is a formal disciplinary action, the details of the poor performance or conduct must be outlined and it must be clear that any further decline or continuation in the relevant performance or conduct could lead to disciplinary sanctions up to and including dismissal. A first written warning should normally remain in force for 6 months.
- Final written warning – If the employee’s performance or conduct does not improve within the given period, a final written warning should be issued. A final written warning should never be issued before the employee has been given the opportunity to present his case at a disciplinary meeting. A final written warning should normally remain in force for 12 months.
- Dismissal – Where the employer decides to dismiss an employee, the employee must be informed of this in writing without unreasonable delay. He should be informed of the decision to dismiss, the reasons for the dismissal, and the date when employment will be terminated. The employee must also be notified of the right to appeal against that decision.
- Sanctions other than dismissal – Employers may decide to impose other sanctions, such as demotion or a reduction in salary where contracts permit such sanctions. If the contract does not permit demotion or salary reduction the employer may be in breach of contract.