Verbal Warnings

What are verbal warnings and when should they be used?

Verbal warnings are a popular option for managers in addressing minor conduct or performance issues and it’s easy to see why, they are one of the few management HR actions that require minimal (if any) procedure – or so one might think!

It is a common pitfall for managers to confuse an ‘informal’ verbal warning with a ‘formal’ verbal warning and consequently fall short on their obligations through a disciplinary procedure.

For this reason, it is important for managers to understand the different types of verbal warning and how they should be used, particularly if they are a commonplace in your business.

‘Informal’ Verbal Warning

An informal verbal warning is a straightforward off-the-record chat between a manager and their employee to quickly and amicably resolve an issue. There is no investigation, no right for the employee to be accompanied at the meeting, and no right to appeal.

The Acas Code of Practice on Disciplinary and Grievance Procedures (the Acas Code) and the accompanying guidance does not specifically refer to informal verbal warnings, but Acas advises that matters of minor misconduct or unsatisfactory performance can be dealt with informally by having “a quiet word”.

Following an informal discussion, you may wish to confirm the agreed plan of action and support for improvement in writing, and some will go as far as to confirm the informal verbal warning itself in writing; however, neither should form part of the employee’s disciplinary record.

Informal verbal warnings can be effective in addressing a first offense and are often all you need to encourage an employee to make the required improvements. If, however, the employee demonstrates a pattern of problematic behaviour the manager will likely need to consider formal action.

Therein lies the distinction between formal and informal warnings in that an informal verbal warning may signal the initiation of a disciplinary procedure in the future if there is a repetition of certain behaviour, whilst a formal verbal warning forms the first stage of a disciplinary procedure.

‘Formal’ Verbal Warning (also known as a Verbal Written Warning)

A formal verbal warning is where an employer verbally informs an employee that in the event that their work, behaviour or actions within the workplace do not change or improve, they may face further formal action and potentially more severe sanctions.

It is important to note that if a manager intends for a verbal warning to be formal (i.e. they want it to be taken in to account in any subsequent disciplinary proceedings), they are required to comply with the Acas Code. The verbal warning should therefore follow an investigation and be issued in or after a disciplinary hearing, where the employee has been given the right to be accompanied and offered a right of appeal.

This may on the face of it seem excessive for a verbal warning; however, if a verbal warning is confirmed in writing, placed on an employee’s disciplinary record and will be considered in any future disciplinary action, it becomes a formal written warning in all but name. The warning then arguably amounts to a formal warning for the purposes of Section 13(4), Employment Relations Act 1999 and the Acas Code.

Formal Procedure

As you can see, navigating verbal warnings can be confusing – are you issuing an informal verbal warning of a formal verbal warning, have you followed the necessary procedure, you intend on issuing a verbal warning, but you might actually be putting it in writing …. it can be easy to get tripped up.

For this reason, if employers use verbal warnings, it is advisable that they have a procedure in place to guide managers and clearly distinguish between informal and formal warnings.

Issues and Risks

We are frequently contacted by managers who have given an informal verbal warning (or multiple) to an employee, have seen no improvement in conduct or performance and understandably have become exasperated by the situation. Their intention is to initiate a formal procedure and issue a higher level of sanction or even seek to dismiss, and because of the informal verbal warning(s) that have gone before, they feel confident and justified in this course of action.

The problem with this being, and we appreciate it can seem frustrating and even illogical, but as mentioned, informal verbal warnings cannot be considered in subsequent formal disciplinary proceedings.

When you think about it from the employee’s perspective it makes sense. With an informal verbal warning there won’t have been an investigation into the allegations or a hearing where the employee has the opportunity to present their case, and the protection afforded by the Acas Code won’t have been in place; meaning the credibility of the informal verbal warning is questionable.

Additionally, the Employment Appeal Tribunal has shown that a warning, although it may be called an informal warning, will not be deemed to be such if it has the characteristics of a formal warning, for example, it becomes part of the employee’s disciplinary record. This means, if you take informal verbal warnings into consideration when deciding on a formal sanction you leave yourself open to significant challenge in relation to the procedure you have followed (or failed to follow) and the fairness of your decision.

Informal verbal warnings absolutely have their place in the effective management of employees; however, it is key for managers to know their limitations and to avoid using them repeatedly or where formal action would have been more appropriate. Informal verbal warnings might seem like a good way to dodge the procedural legwork of the formal process, but you might find that you are just kicking the can down the road!

If you have any questions in relation to this article or would like further advice on verbal warnings, please feel free to get in touch with a member of our team.