Can I face disciplinary action without being given a prior warning?

If you do something at work you have been warned not to do, you will probably expect to be punished – and it may surprise many, but it can be fair for your employer to do so without warning you first.

An employee who breaches any of their employer’s policies could find themselves facing disciplinary action without ever being cautioned first.

In fact it is not unusual for it to happen, and for it to be considered fair.

There is a common misconception that an employee should be warned before any disciplinary action is taken against them.

It can certainly be a helpful approach for an employer to adopt in some cases, as it can help to stop certain situations spiralling out of control in a manner that can harm or destroy working relationships.

An employer in alerting an employee to the fact they have done something wrong gives them the perfect opportunity to acknowledge the matter, and to correct it.

Such an approach fits within the idea of fairness and transparency, which should be in every workplace.

Warning an employee they have done something wrong, rather than taking instant or automatic disciplinary action can be seen as providing constructive feedback.

It gives the individual a chance to address the particular matter and to improve their conduct.

And it can be a very effective and beneficial approach for an employer to take with some acts of misconduct

An employer in providing a warning rather than taking immediate disciplinary action in response to every allegation, can help to maintain trust and morale within a workforce.

Hasty disciplinary action can create a feeling of fear among employees and a sense of insecurity.

However, there can be work-related situations and cases in which it is appropriate and fair for an employer to take disciplinary action without issuing a warning first.

Acts of gross misconduct are acts so serious they can justify dismissal for first offences e.g. theft, fraud physical violence [1] cited 14.10.24

In such cases it can be reasonable for an employer to take disciplinary action without the need to issue any prior warning.

Employment law can be viewed as a complex mix of legislation, case law, and employer-specific policies.

It does mean employees can be forgiven for being unclear on if it can ever be considered fair for them to face disciplinary action without receiving any preceding warning.

Many workers do believe that formal disciplinary action can only be taken against them after a series of warnings, which is not always the case.

Here we look at if an employee can face disciplinary action without a warning and the factors which may justify it.

The disciplinary procedure

A disciplinary procedure is the formal process utilised by an employer to deal with any concern relating to unacceptable work-related conduct by an employee, performance concerns or failure to adhere to workplace policies [2] cited 14.10.24

The policy will make clear to all employees the process that will be followed if any type of disciplinary action needs to be taken, and should help to ensure all members of staff are treated consistently and fairly.

Disciplinary action can vary from an employer deeming it suitable to issue words of advice to an employee about their future conduct, up to and including the ultimate sanction of termination of the contract of employment.

Any disciplinary process conducted should be fair and comply with an employer’s disciplinary policy.

Are warnings necessary?

A common question employee’s often ask is: how many verbal warnings can you have before a written warning?

There is an assumption and misconception that a worker should be given a verbal warning before being issued with a written warning.

But there is no requirement in employment law for an employer to issue a verbal warning before taking formal disciplinary action against any member of staff, or even deciding to dismiss them.

How an employer opts to act in each case will, obviously, vary and depend on the nature and seriousness of any allegation levelled against an employee.

It is worth pointing out that the ACAS Code, which provides good practice guidance for all employers when conducting investigations or a disciplinary process, does advise: Cases of minor misconduct or unsatisfactory performance are usually best dealt with informally. A quiet word is often all that is required to improve an employee’s conduct or performance [3] cited 14.10.24

Circumstances in which you can be fairly disciplined without a warning

All employees should reasonably be aware of the standards of behaviour expected from them.

However, there are numerous examples of employees committing serious acts of wrongdoing, which can clearly justify disciplinary action without a warning.

We have seen reports of a recent case in which a former National Trust employee who defrauded the organisation out of more than £1million was jailed for over six years [4] cited 14.10.24

Such acts, when discovered by an employer can lead to disciplinary action and dismissal without prior warning.

An employer’s disciplinary policy will usually provide a non-exhaustive list of examples of gross misconduct, and behaviour so serious it can lead to dismissal. It typically includes: theft, fraud, dishonesty, harassment, serious health and safety breaches and physical violence.

Such allegations are serious enough to require immediate action, with no prior warning being issued, as if proven the acts can be considered a fundamental breach of the mutual duty of trust and confidence in a working relationship between employer and employee [5] cited 14.10.24

When you can expect a warning first

The vast majority of allegations will not amount to gross misconduct and, therefore, it is reasonable to expect a warning first before being subjected to disciplinary action.

Poor punctuality is a good example, as notifying an employee timekeeping is a concern and giving them a fair opportunity to improve, can often be enough to resolve the situation without taking immediate disciplinary action.

Many performance concerns can be addressed in a similar manner. Giving an employee time and support to do better, can bring about the required improvement.

In such situations an initial informal warning can often be sufficient. If that is ineffective then a verbal warning or fist written warning can be considered.

A fair process for dealing with acts of alleged misconduct should use a system of graduated warnings, eventually leading to dismissal if there is no improvement.

Facing disciplinary action without previous warning

It is common for an employee to face disciplinary action, and to feel aggrieved in that situation, in the absence of any past warning. If this is the case, there are a couple of things the employee can do:

• Seek clarification about the action being taken and make a reasonable request for clarification and if the allegation is being considered gross misconduct.

• Check you are being treated fairly and in line with the disciplinary procedure by reviewing your employer’s disciplinary policy.

• If you believe you are being treated unreasonably seek advice and raise a formal grievance if necessary [6] cited 14.10.24

Finally

There can be circumstances in which it is possible and fair to face disciplinary action as an employee, including dismissal, without a prior warning. Especially if an allegation is a serious breach of any employer policy and could be considered to amount to an act of gross misconduct.

But in most other cases of alleged misconduct, employers should follow a structured process, which includes issuing warnings before taking further action.

Employees should understand their employer’s disciplinary process and be aware of what to expect and, crucially, of their rights, including the right to a fair process.

If you are facing a disciplinary action without a warning, and you require advice or support, contact our Employee Support Centre or call us today for a free initial consultation on 0333 772 0611.