Are verbal warnings a thing of the past?

Dealing with disciplinary or performance issues?

Verbal warnings are a common disciplinary tool used by employers in the UK, however their use has not always been compliant with the law, and many are starting to question if they have any place in HR practice at all.  

Verbal warnings are typically used to address minor misconduct or performance issues; however, problems have arisen between employers and employees understanding of the impact of a verbal warning, and when employers have sought to rely on a previous verbal warning to  justify a dismissal following the accrual of several warnings for minor misconduct.

The problem with verbal warnings

The problem with verbal warnings is often managers and HR are not entirely clear on the purpose of the verbal warning and are using them inappropriately. What I mean by this is that employers have been seeking to rely on a verbal warning as the first stage of the disciplinary warning process but have not been following the full process needed to be able to rely on the warning later on.

On the flip side some employers are using them informally but are not clear on the messaging to employees who often feel it is a more serious sanction.

The other issue with a ‘verbal warning’ is that details are subsequently communicated in writing to the employee, leading to further confusion about the purpose and scope of the warning with many asking, ‘if it is verbal warning why is it in writing!’.

When can you rely on a verbal warning?

In order for the issue of a warning, verbal or written, to be relied upon confidently in a later decision to dismiss an employee the employer needs to have followed a fair and reasonable process in accordance with the ACAS code of practice as a minimum. This requires employers to (in short):

1. Gather evidence and undertake a fair investigation
2. Invite the employee to a meeting, providing them with all of the evidence and information in advance of the meeting.
3. Allow the employee to be accompanied at the meeting by a colleague or Trade Union rep.
4. Enable the employee to provide their side of the story and any evidence they have to support them.
5. Consider all of the information and reach a conclusion.
6. Allow the employee to appeal the decision

As you can see, following the formal process takes away from the seemingly informal nature of a verbal warning.

What to use instead of a Verbal Warning?

Rather than a verbal warning you can use a management advice letter or informal discussion, which sets out the conduct or performance issue for the employee clearly and enables them to take it on board and take action to improve or prevent it from occurring again.

The process to follow is start with a discussion with the individual to ensure they are aware of the issue and the impact and letting them respond accordingly and then following up in writing, either by way of a letter or by sharing notes from the informal discussion.

Whilst this informal approach cannot be relied upon later on for a cumulative warning dismissal, it is good evidence that you have tried all steps to help and enable the employee to improve their performance or conduct and can be used as supporting evidence. 

To conclude

The use of verbal warnings as part of your disciplinary process is fine as long as you and the employee understand the purpose of the verbal warning and process that is going to be undertaken in every verbal warning scenario.

If the verbal warning is going to be part of the formal process, follow the steps set out above and in the ACAS code of practice.

If the verbal warning is going to be part of the informal process for improvement action only, then be clear that this is the case and that you will not be able to rely on it as justification for a cumulative warning dismissal (i.e. where minor misconduct or performance issues continue over a period despite warnings being given).

If you would like any help and support in reviewing and revitalising your disciplinary or performance management process, please do not hesitate to contact us we can help you with the paperwork and provide training to managers on how to manage disciplinary and performance issues.