First written warning to employee about their performance

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What’s a first written warning to an employee about their performance and when do you need it?

This letter forms part of our suite of materials to support you where you have invoked your performance improvement policy and its process because of your concerns relating to the quality of performance that an employee is achieving.

This may include concerns about whether they are in fact capable of performing the role that they currently hold in your business. It's not the same as a disciplinary process.

Depending on what the employee has done, you may already have issued a verbal written warning to the employee before taking this step (indeed, this is recommended in the Farillio performance improvement policy template and it’s recognised as good practice).

If the employee has not complied with the verbal warning, this formal written warning would be the next step.

This is not the same letter as you’d use where an employee has behaved inappropriately - which would be a misconduct matter, not one of performance or capability.

Poor work performance concerns the outcome of the work carried out (a performance/capability matter), not the approach to its being carried out (misconduct).

Things like breaching works rules or various other forms of improper behaviour are obviously correct to categorise as misconduct.

Poor performance on the job, however, is more of a grey area. Normally, such matters are dealt with under a capability procedure as they are often down to an employee’s ability (or lack thereof) rather than any intention to do the wrong thing.

You should only use this suite of materials in relation to employees.

If you were to apply your performance improvement proceedings to someone who is not an employee, or to treat them in an equivalent manner, this could lead inadvertently to an employment tribunal concluding that that individual does in fact have employment status – with the enhanced rights attaching to such status.

It would be better to seek specific advice on how to handle anyone whose performance is a problem, but who is not an employee.

What else might you need?

Your employment contract with the employee and your performance improvement policy within your staff handbook should make clear what constitutes poor performance and therefore justifies you issuing a first, and any subsequent, written warnings.

Our guide to employee performance management can also help you to assess the seriousness of an employee’s lack of performance and your rights in response to it.

If your concern is more about the attitude or behaviour of an employee towards their work or their colleagues, you should take a look at our suite of misconduct or gross misconduct-related letters and you should refer to your own disciplinary policy for guidance on how to handle these concerns.

And if you need help or have queries on how best to approach this letter or, more broadly, the situation with the employee in question, our Speak To A Lawyer service is ideally placed to help you.