The HR Forum

Disciplinary Action

Posted by Rachel Trowsdale on April 21, 2016 at 3:41pm in Employment Law

I have been given conflicting information regarding a disciplinary that we are currently going through and am hoping someone can advise me.

One of our staff received a written warning back in August 2015 for fighting at work (to be kept on file for 12 months) and we are just about to see him again on an unrelated incident for which he is likely to receive another warning. I have been advised by our HR Consultant that we can't give him a final written warning as the matters are not related.

One of our Managers does not believe this is the case and has consulted with a solicitor who has said that it doesn't matter if the incidents are unrelated, if he has already been issued with a written warning, his next one will be a final warning regardless of whether the incidents are connected.

I really don't know who is right. Can anyone offer any advice?

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Replies

Rachel Trowsdale April 22, 2016 at 11:03am

Thanks for your advice everyone. I have just spoken to the CIPD Legal Helpline and they have advised me that the matter falls in between the two pieces of advice.

Basically, it is as some of you have mentioned, it comes down to the wording in the letter. The issues could be linked together if we had stated simply that the warnings were for conduct (in this instance) and that any further conduct issues would result in the escalation of previous warnings.

I am clear now what we need to do, revising our letter templates being one of them.

Thanks again for all your advice - much appreciated.

Rachel
- Sarah Loates > Rachel Trowsdale April 22, 2016 at 4:47pm
  
  Hi Rachel
  
  Thanks for sharing the feedback from the CIPD Helpline glad you got this one sorted.
  
  All the best
  
  Sarah
Sarah Loates April 21, 2016 at 5:19pm

Hi Rachel

Yes it would be great if you could post the advice which you receive from the CIPD Legal Helpline.

Also take a look at the case law on this below...................

http://www.lexology.com/library/detail.aspx?g=5465b351-eed8-4590-a6...

All the best

Sarah
Chrissy Allen April 21, 2016 at 4:06pm

Hi Rachel, I can't answer your question exactly but I have been advised that the informal 'warnings' (or Quick Adjustments) that we use prior to formal written or verbal warnings, can only add up to a formal warning if they relate to the same subject. I'm afraid I'm not sure if the same applies to formal warnings though.

Have you tried looking on the ACAS website? They also have a helpline, so you might be able to get a second (or rather third) opinion there.

Best wishes,

Chrissy
Laura Crane April 21, 2016 at 4:05pm

I agree, it would depend on the original wording that you put on the written warning about future expectation and potential outcomes of any future items of misconduct/unsatisfactory performance. It may be useful to look at reviewing your template warning letters to ensure you cover that off going forward.

ACAS/CIPD have some handy template letters which might be of help. The CIPD Law helpline would be a great source of advice around this type of thing also.

Regards

Laura
Maddy Ross April 21, 2016 at 3:57pm

Hi Rachel

It depends on the exact wording of the original warning, but it sounds like your consultant is correct. In order to stack up the warnings so that you can issue a final written warning, the subject of the warning must be the same. This is why it's advisable to be less specific when issuing written warnings, i.e. for "poor conduct" rather than specifically for "fighting at work" etc.

Hope that's helpful.
Debbie Harvey April 21, 2016 at 3:56pm

Hello Rachel,

Did you know that the CIPD has a CIPD Law Helpline for CIPD membership?

Why not give them a call?

regards

Debbie