Verbal Warning Advice

Lizie

Just found out that a colleague has been called to receive a verbal warning in the morning and looking for advice.
We work in a busy newsagents and the other day some girls shoplifted some cans of coke. My colleague was working near the fridges that they robbed from and he is now being issued with a verbal warning as the boss says that he did not do his job because he did not spot that they were robbing the fridge.

Can he do this?

Any advice appreciated.

Lizie

tatli_lokma

Well an employer is within their rights to discipline an employee if they feel their competence, conduct or capability to the do the job are in question.

Without knowing more details, if your employer feels that your workmate was not being vigilent enough and therefore not doing part of his job competently (i.e. being aware of security risks) then he would be within his rights to issue a verbal warning.

So the short answer is yes he can do that.

Your workmate also has the right to appeal the warning if he feels there are acceptable grounds or reasons why it was not a fault on his part.

The main thing is that your employer must follow fair procedures when disciplining staff and issuing warnings. More information on it is here:
http://www.lrc.ie/viewdoc.asp?DocID=88

LowKeyReturn

No he absolutely can't do whats been described.

He can call a disciplinary hearing which carries with it many of the same rights you'd have in court and then make a decision on the evidence that a verbal warning should be issued, but he can't 'call someone in for a verbal warning'.

Appeal it and if there's no joy and over a years service get some proper advice and consider taking it to tribunal.

Mrs OBumble

LowKeyReturn wrote: »

He can call a disciplinary hearing which carries with it many of the same rights you'd have in court and then make a decision on the evidence that a verbal warning should be issued, but he can't 'call someone in for a verbal warning'.

Links please ....

LowKeyReturn

Mrs OBumble wrote: »

Links please ....

To what? The cases on point would be Re Haughey and Hamilton IIRC.

Re Cross examination of witnesses and the right to be heard this is a basic right given by the umbrella term of 'constitutional justice'. The right to representation is situational and to be fair a shop worked would be unlikely to be able to avail of it, that said one could put the argument forward that a shop worker is no less a career than a prison officer, where obiter comments have been made the legal representation would be allowed in certain circumstances. One scenario for a shop worker might be where an employee is accused of theft, although not relevant to the OP.

I've been in disciplinary hearings (on the company's side) where the right to cross examination has been refused and the employee's solicitor has advised the client to walk out of the hearing. Employees are also well advised to record the meeting without permission or consent of the employer. At worst you've taken up a bit of memory on your phone, at best it gets to tribunal and is admitted as an aide-mémoire. Don't make me look up this one it takes me ages and I always forget to write down the fecking case name! :pac:

As for a decision maker having to make decisions based on the evidence this is an extension of the right to constitutional justice, vis a vis fair procedures, but is curtailed here quite significantly by decision makers need only 'some' evidence, no matter how slight, and regardless of the strength of the opposing argument to make a decision. Again in a private business there would probably be even less of a standard to meet, if that's even possible. Case on point Meadows but its a nightmare of a judgment at something like 200 pages but does explain the current jurisprudence, there are probably better cases on point.

I don't dispute a verbal warning could be given but taking the OP at face value the decision maker has made a decision before convening a disciplinary hearing - a clear beach of fair procedures.

Thoie

LowKeyReturn wrote: »

I don't dispute a verbal warning could be given but taking the OP at face value the decision maker has made a decision before convening a disciplinary hearing - a clear beach of fair procedures.

I didn't read that from the OP at all. It sounds like the manager just gave a verbal warning. What's wrong with the picture is the fact that none of the staff seem to know what that means and what the consequences are.

OP, yes, your manager can give verbal warnings, but they should ensure that everyone working there knows what the disciplinary proceedings are. They can, within limits, make up their own procedures as long as everyone knows about it in advance - they shouldn't be making it up on the fly.

LowKeyReturn

You say you didn't get, from the OPs post, that the manager just gave a verbal warning but then you say:

Thoie wrote: »

It sounds like the manager just gave a verbal warning.

You then go on to say:

Thoie wrote: »

OP, yes, your manager can give verbal warnings, but they should ensure that everyone working there knows what the disciplinary proceedings are. They can, within limits, make up their own procedures as long as everyone knows about it in advance - they shouldn't be making it up on the fly.

Which again is rather strange. Are you suggesting that as long as the employees are aware the manager can read tea leaves to decide the outcome of a disciplinary hearing or simply that they can unilaterally give warnings without a hearing? I'm sorry to be flippant but it's to illustrate a point. Apologies if I have misunderstood your post.

Thoie

LowKeyReturn wrote: »

You say you didn't get, from the OPs post, that the manager just gave a verbal warning but then you say:


Which again is rather strange. Are you suggesting that as long as the employees are aware the manager can read tea leaves to decide the outcome of a disciplinary hearing or simply that they can unilaterally give warnings without a hearing? I'm sorry to be flippant but it's to illustrate a point. Apologies if I have misunderstood your post.

The "within limits" was to rule out tea leaf readings A "standard" process might be 3 verbal warnings, 1 written warning, then a disciplinary hearing (at which point the employee can bring a witness and rebut accusations), then firing after that. Gross misconduct might jump straight to disciplinary hearing. As a counterpoint, a "standard" process would also detail how an employee can challenge a verbal/written warning if it was unwarranted.

Some companies may have a different number of verbals, or whatever, the main point is that the details of the steps and consequences of each step should be available to all staff members. No staff member should be in a position of wondering what a verbal warning means - or unsure whether they've received a verbal warning or just a random ticking off.

It is also unfair, for example, to give a verbal warning, then suddenly fire someone for the next mistake if that expectation wasn't set out - that's what I meant about making things up on the fly. It's the difference between saying "this is a warning, if it happens again you may/will be dismissed" vs "ah now, don't let it happen again" then leaping out from behind a bush and firing them the next time a mistake is made.

My first point was that I didn't think the manager had jumped to a disciplinary hearing - just that a verbal warning was given. I see them as two quite different things.

LowKeyReturn

Thoie wrote: »

The "within limits" was to rule out tea leaf readings A "standard" process might be 3 verbal warnings, 1 written warning, then a disciplinary hearing (at which point the employee can bring a witness and rebut accusations), then firing after that. Gross misconduct might jump straight to disciplinary hearing. As a counterpoint, a "standard" process would also detail how an employee can challenge a verbal/written warning if it was unwarranted.

I think this is where I'd argue you're in error. You can make several informal warnings, in fact you'd be wise to. What you can't do is offer a verbal or written warning without a properly conducted disciplinary hearing. To be honest I think we're arguing more about terminology here.

In short a formal warning (verbal or written) requires a hearing.

Thoie wrote: »

Some companies may have a different number of verbals, or whatever, the main point is that the details of the steps and consequences of each step should be available to all staff members. No staff member should be in a position of wondering what a verbal warning means - or unsure whether they've received a verbal warning or just a random ticking off.

Again I'm going to assume you mean informal verbal warnings, something along the lines of Gary - I've told you before about being late not Gary here's a verbal warning for being late - three of these leads to a written warning, three of those is the sack. The reason you can't do the latter is that a formal waring requires a hearing.

Now at that hearing Gary might turn out to be Bat-man and saving people from being murdered every time he's late. That fact can be completely ignored by and a warning issued because the decision maker, once he/she has some evidence for their decision, and the process is fair is essentially king/queen/the joker.

Thoie wrote: »

It is also unfair, for example, to give a verbal warning, then suddenly fire someone for the next mistake if that expectation wasn't set out - that's what I meant about making things up on the fly. It's the difference between saying "this is a warning, if it happens again you may/will be dismissed" vs "ah now, don't let it happen again" then leaping out from behind a bush and firing them the next time a mistake is made.

As part of the disciplinary process both before the hearing and once a course of action is agreed you've a duty to warn the 'offending' party of the consequences, this is borne out of the doctrine of notice.

Thoie wrote: »

My first point was that I didn't think the manager had jumped to a disciplinary hearing - just that a verbal warning was given. I see them as two quite different things.

Again and sorry to keep hammering this but I think you're confusing a formal and informal warning. An informal warning would not be what is commonly understood to be a 'verbal warning'.

LowKeyReturn

At this point I just want to say nothing I'm saying should be considered as legal advice, I'm simply going on my personal experience and as always any corrections are more than welcome. As a general note you'd be nuts to rely on anything said on boards for something as important as your livelihood. First correction to my original post is you can't take it to tribunal.

That said I more than enjoy a good argument and find I learn a lot from other posters.

Here is the Code of Practice Note Section 4(6) and 4(10).

Also note 4(4) which runs counter to a point raised by me before. I'll have to look into this further as there has been decision that allow representation by legal advisors in certain circumstances. To be fair this was in the case of a prisoner escaping, but I stand over the argument that in an allegation that could result in a criminal charge, eg theft, you'd be allowed legal representation. I'm open to correction however.

EDIT: I should also point out that 'natural justice' and 'constitutional justice' are used interchangeably and mean the same thing. Even if they don't I mean 'natural justice' as set out in the cases I mentioned.

Bandana boy

LowKeyReturn wrote: »

In short a formal warning (verbal or written) requires a hearing.

You are mistaken
It is good practise from a firm to investigate/have a hearing before issuing every warning. There is precedent where failure to do so has allowed an employee to be successful in a wrongful termination claim.

But this is not law
You do not have to give any warnings to dismiss an employee, it is just significantly harder (but not impossible) to defeat a wrongful dismissal claim if you have not done so.

LowKeyReturn

Bandana boy wrote: »

You are mistaken
It is good practise from a firm to investigate/have a hearing before issuing every warning. There is precedent where failure to do so has allowed an employee to be successful in a wrongful termination claim.

But this is not law
You do not have to give any warnings to dismiss an employee, it is just significantly harder (but not impossible) to defeat a wrongful dismissal claim if you have not done so.

None of that detracts from what I've said. You can of course dismiss an employee without warnings for gross misconduct but to do so without hearing would result in you losing at EAT for failure to follow fair procedures. Not because a warning was not issued but because you didn't have a hearing. Of course there are exceptions to this but we're talking extreme cases where an employee has assaulted a customer and is now in prison. Even then a company is likely to err on the side of caution and give someone the opportunity to send a representative, which of course is going to be declined. (Actually seen the latter half of that scenario - quite absurd really)

You have a chicken and egg problem if you issue a formal warning without hearing. On the one hand the employee wasn't sacked so you could argue no foul - however if you have prejudged that a verbal warning should be issued in lieu of another sanction you've prejudged the issue and therefore are in breach of fair procedures.

To quote Mrs O'Bumble - Links please (to your proposition) or if you'd like to point out where I'm wrong given the linked code of practice. I'm more than happy to be proved wrong I learn from every one, but in this case I've yet to be convinced.

LowKeyReturn

You might get some milage out of 4(11):

11. Generally, the steps in the procedure will be progressive, for example, an oral warning, a written warning, a final written warning, and dismissal. However, there may be instances where more serious action, including dismissal, is warranted at an earlier stage. In such instances the procedures set out at paragraph 6 hereof should be complied with.

However I'd argue that provision is so vague as to render it useless and that prejudgment has taken place. I know you might argue otherwise but something tangible would be more convincing. A link to the interpretation of that section would be very much appreciated.

EDIT: Thought I'd expand on this a bit.

Does that section require that 4(6) is only complied with in the case of a more serious sanction or is it just a double protection? e.g. a pointer back to section 4(6) essentially say make sure you do this, but you should be doing it anyway. Does it mean that where a more serious sanction that an 'oral warning' is given you have to follow 4(6)* or does it only apply to dismissal? Do the rules of statutory interpretation apply to SI codes of practice? (In which case I think the most favourable interpretation is applied but I'm open to correction of course.)

*I realise this backs up your and Little Teds position

LowKeyReturn

Getting back to the OP what does your disciplinary procedure say about all this as I might well be missing a much simpler solution of you don't have one!

I'd also question what I was supposed to do in the even I did see someone stealing. Has a risk assessment been carried out on any action you are supposed to take?

tatli_lokma

I think the point myself and other are making is that yes and employer can discipline in the form of a verbal warning *provided* the correct checks and procedures are in place

Having said that, let's not get too carried away either about legal precedent. A bit of common sense is also required. If you are working in a shop, loading up the fridge in a world of your own and somebody steals from the fridge when just a bit of attention from you would of prevented it then I think it would be fair enough for the boss to have a word with you about it. I'm not saying this is what OP's workmate did I'm just paying Devils advocate. Sometimes the term 'verbal warning' or even just 'warning' is bandied around, especially in industries such as retail with young workers. In truth it is rarely that formal. For items to be a true verbal warning it still needs to follow the correct procedure set out in the staff handbook and needs to be properly put on your record and followed up with. A lot of times it is far from this and is really just a boss trying to give you a 'talking to'.

It is not clear from OP's post if this case was a formal issue or more along the lines of what I have described.

I think sometimes we can be all about bit too over zealous when taking about proper formal procedures. I don't advocate employers flouting the rules. But at the same time we've all been told to pull up our socks and one time or another. Sometimes fairly said, other times when it's not our fault. It's all part of progressing through your working life.