Official warning

An official warning is given by an employer to an employee when a company rule has been broken. However, it appears that the rules on which the warning is based are often not laid down or that the rules are difficult to lay down. When does an employer give an employee an official warning and what are the rules regarding this warning?

Regulations concerning official warnings

There are not many rules concerning official warnings. The main rule is that the warning must be recorded in writing, including the reason for the warning. Once the employee has signed the written warning, it can be included in the employee’s file. An employer can also record the consequences if the employee fails to comply with the agreed rules after receiving an official warning.

There are no rules regarding a valid period. If an employer wishes to do so, this period can be recorded in writing. Reasonably, an official reprimand may become less important if an employee does not break any rules for a long period of time.

When can an official warning be given?

An official warning can be given when an employee fails to comply with agreements made, violates internal rules or performs inadequately, provided that this is properly recorded and substantiated. The warning must clearly describe the behaviour that is being criticised, what the expectations are and what the possible consequences are in the event of a repeat offence. By issuing warnings carefully and in a timely manner, the employer builds up a strong case that can be of great importance in the event of any follow-up measures such as demotion or dismissal.

Put agreements in writing

It is wise to put as many agreements as possible regarding house rules and procedures in writing in advance. If a situation arises in which a rule or boundary is crossed, the employer can then remind the employee of these agreements; a “normal” warning. If the employee still fails to comply, they may receive an official warning. By recording these agreements and sharing them with the employee, for example after signing the employment contract, the employee is aware of them.

When do you issue an official warning?

You can choose to issue an official warning:

– when the employee is not performing his/her job properly;

– when the employee does not comply with the agreements, house rules or usual procedures;

– when the employee does not adhere to the agreed working hours;

– when the employee takes unauthorised leave;

– when the employee does not treat colleagues correctly;

– when the employee uses offensive language;

– when the employee submits an unjustified sick note;

– when the employee exhibits annoying or certain behaviour, is guilty of undesirable behaviour or transgressive behaviour in the workplace;

– when the employee is guilty of exceeding internally determined powers.

The above events may overlap. The more an employer specifies in the employment contract, the more these situations can be avoided. This naturally takes time, and some matters may seem unnecessary to include. However, when an unpleasant situation does arise, this can save the employer a lot of money in legal proceedings.

Legal validity of official warnings

Although there are few regulations governing official warnings, an employer must comply with a number of obligations when issuing a warning. When is an official warning legally valid? The warning, in the form of an official warning letter, must first of all be carefully drafted. The written warning must include, among other things:

• The offence in question or the accusation made against the employee

• Previous warnings or complaints addressed to the employee

• The employee’s response (right to be heard)

• A reference to the applicable rules

• The penalty for repeating the offence

The legal validity of an official warning letter is limited if there is no confirmation of receipt, confirmation of reading or statement of agreement.

What are the consequences?

An official warning can be the start of further measures. These could include suspending the employee. One official warning is usually not enough to justify dismissal. Multiple official warnings and further disciplinary measures do provide grounds for dismissal.

Please note: there is no legally prescribed number of official warnings that an employer may issue before deciding to proceed with dismissal. However, the severity of the offence or offences does play a role in this decision-making process. An employer can inform the employee by registered letter that this is a final official warning and that similar misconduct will result in dismissal. In doing so, the employer creates a clear basis that can be used to terminate the employment contract.

Employee objection

If an employee has received an official warning and does not agree with it, they can respond to it. This response is usually sent by registered letter or email. This provides the employee with written proof that they have objected to the warning and prevents the employee from having a one-sided negative personnel file. In the event that an employee receives an official warning, the objection generally contains:

• A response in which the employee indicates that they disagree with the warning

• The interpretation of the facts and circumstances from the employee’s perspective

• A request to withdraw the warning

• A request to include the employee’s response in the personnel file

An employer would be wise to include the employee’s objection to the official warning in the personnel file. This provides the employer with evidence for a possible dismissal procedure in a single file. By adding the employee’s written objection or response to the file, the personnel file does not contain only negative points and warnings from the employer. This is also referred to as a one-sided negative personnel file.

How long is a warning valid?

There is no fixed term for the validity of an official warning. In practice, the seriousness of the offence “weakens” over time, especially if no new offences occur. However, in the case of a serious offence, an employer may set out the period of validity in writing, as well as the consequences associated with a new (similar) offence or a subsequent incident within the period of validity of the warning. Once the warning period has expired, it can be assumed that the warning is less powerful. In this case, the official warning is removed from the personnel file.

Can an official warning expire?

There are no official regulations governing the validity or expiry of an official warning. The employer can decide, either independently or in consultation with the employee, how long the warning will remain in force and whether it will be removed from the personnel file after a certain period of time. It is advisable to record these agreements in writing and to state the conditions attached to them, so that both parties are aware of the expectations.

When does an official warning expire?

The official warning is primarily intended to prevent a recurrence of the employee’s alleged behaviour. When does an official warning expire? Generally, an employer may decide to let the official warning expire or to withdraw the warning if the employee does not violate any company rules during the period of validity of the warning and no further official warnings follow

Think carefully before issuing a warning

The more you note down, the stronger your position will be. This is especially true when a situation results in suspension, dismissal or legal proceedings. Will the employee contest the decision? The circumstances of a situation are always closely examined by a judge. It goes without saying that it is important for the facts to be correct. This is also the case when summarily dismissing an employee.

In many cases, we advise you to think carefully about whether to issue an official warning, proceed with summary dismissal or initially give an employee an unofficial verbal warning. In most cases, an official warning is less risky for you as an employer and can support more severe sanctions, such as dismissal, in the future. Do you have any questions or would you like advice? Please feel free to contact one of our solicitors specialising in employment law.

Authors: Employment law solicitors Judy Sliepen and Myrddin van Westendorp