When is a warning not a warning?

When is a warning not a warning? The simple answer is when it’s not carried out correctly.
We get a surprising number of calls from employers who have reached the end of their tether. They’ve given an employee lots of verbal and written warnings with no improvement. Now they feel the need to remove the employee. It comes as a shock to them when we say, “that’s risky”.

Let me give you an example of what I mean

A business provides a facilities service to clients. They send teams of employees into a client premises, often out of hours. The intention is that the client will come into work the morning after and be delighted by the results. Over a 10 year period this had not always been the case when the business sent in one particular employee. His work was not always of a high standard. Over the ten year period the employer had given the employee a number of verbal and written warnings relating to his poor standard of work.
One morning the Facilities business owner received an irate phone call from a client about the less than sparkling state of his premises after having paid for an overnight service. The employee had signed all the work off as up to standard and left the paperwork for the customer.
The call from the Facilities business owner was along the lines of “I’ve had enough, I want to get rid of this guy”.

The reality?

The warnings were warnings in the English sense, not in the legal sense. If you want to rely on them to dismiss someone it is not safe to do so.
Dragging somebody into the office and tearing a strip off them, would be interpreted by many as “a verbal warning” because the employee was spoken to and told not to do it again.
Employees have rights. Where discipline at work is concerned, there is a minimum standard of rights that the ACAS Code of Practice gives an employee. This code is based on fairly ancient rules of natural justice, things like,

• I should know what I’m accused of before I am expected to defend myself
• The employee should have the chance to put forward a defence and have it listened to
• I should be able to appeal against any sanction that is imposed

Dragging somebody in the office and tearing a strip off them goes nowhere near meeting the expectations of natural justice or the minimum standards imposed by ACAS.

So what do we do?

Those conversations in the office where an employee is told that they are not performing at an acceptable level would be better termed “informal warnings”. They are warnings that an employee has been given so that they have a change to put things right. The warnings are probably (although not always) outside a formal Disciplinary Procedure. They are, at best, evidence that the employer has made the employee aware of the standard required v the standard being delivered.
There will come a point where an employer will feel like they have had enough informal conversations with an employee. They will want to escalate matters. This is where “when is a warning not a warning” kicks into play. This is the point where we have to follow a process set out in our Disciplinary Policy and Procedure and any warnings ultimately issued become “proper” warnings in the legal sense.

So how do you change “When is a warning not a warning” into “a warning is a warning”?

1. follow your own disciplinary policy and procedure (if you’ve not got one call us now on 01706 565332)
2. ensure that you have thoroughly investigated the matter
3. invite the employee to attend any investigatory meeting or Hearing correctly. Give them the right of accompaniment at the appropriate points
4. provide the employee with the evidence to be considered before the Hearing
5. put the evidence to the employee and give them a chance to explain what happened
6. consider does the evidence support the allegation. If it does, what sanction you will impose? Check your policy. If the evidence isn’t there is the case dismissed?
7. write to the employee with the outcome, telling them how long any sanction will remain on their record. Give them the right of appeal

The “man on the Clapham omnibus test”

For any who have studied law this test is common. It relates to considering what would a reasonable person outside the organisation looking in think about treatment received. We think that a reasonable person would find treatment of the employee to be reasonable if a process is followed rather than a reaction that is throwing a long service employee out of work without following a reasonable process.
If you want to know more about “When is a warning not a warning” so that you protect yourself from stepping onto unsafe ground give us a call now on 01706 565332 or email us and we’ll call you right back
 
Metis HR is a professional HR Consultancy based in the North West of England supporting clients across the country. We specialise in providing outsourced HR services to small and medium-sized businesses. Call us now on 01706 565332 to discuss how we may help you.