Official warning

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

Rules around official warnings

There are not many rules around an official warning. The main rule is that the warning must be 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 what the consequences are if, after an official warning, the employee does not comply with the agreed rules.

There are no rules attached to a valid period. However, should an employer wish 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 time.

Put agreements made in black and white

It is wise to put in writing in advance as many agreements as possible regarding house rules and procedures. If a situation then arises in which a rule or limit is exceeded, the employer can remind the employee of these agreements; a ‘normal’ warning. If the employee still does not comply, the employee can be given an official warning. By recording these agreements and sharing them with an employee, for example after signing the employment contract, an employee is aware of them.

When do you give an official warning?

You can choose to give an official warning:

• When the employee does not perform his/her job properly;
• When the employee does not comply with agreements, house rules or usual procedures;
• When the employee does not comply with agreed working hours;
• When the employee takes unauthorised leave;
• When the employee does not treat colleagues properly;
• When the employee uses irritating language;
• When the employee makes an unjustified sick report;
• When the employee displays annoying or certain behaviour, engages in undesirable behaviour or cross-border behaviour in the workplace;
• When the employee is guilty of exceeding internally determined powers.

The above events may overlap. The more an employer lays down in the employment contract, the more will be avoided. Of course, this takes time and some things may seem unnecessary to include. But when an unpleasant situation then arises once, it can save the employer a lot of costs for proceedings.

Legal validity of official warning

Although few regulations have been laid down regarding official warnings, an employer must comply with a number of obligations when issuing a warning. When is an official warning legally valid? First of all, the warning, in the form of an official warning letter, must be carefully drafted.

The written warning should describe, among other things:

• -The offence in question or the reproach made to the employee
• Previous warnings or complaints against the employee
• The employee’s response (rebuttal)
• A reference to the applicable rules
• The sanction standing for repetition of the offence

The legal validity of an official warning letter is limited if an acknowledgement of receipt, reading confirmation or statement of agreement is missing.

What are the consequences?

An official warning can be the trigger for further action. Consider suspending the employee. For a dismissal, one official warning is usually insufficient. Multiple official warnings and further disciplinary measures do provide grounds for dismissal.

Please note: there is no legally prescribed number of official warnings that can make an employer decide to dismiss. However, the severity of the offence or offences do play a role in this decision-making process. An employer can, by informing the employee in a registered letter that this is a final official warning and that similar misconduct will result in dismissal. By doing so, the employer creates a clear basis, which can be grounds for terminating the employment contract.

Employee’s objection

If an employee has received an official warning and the employee does not agree with the official warning, the employee can respond. Usually, this response is sent by registered letter or email. This provides an employee with written evidence that can be used to prove that he or she has objected to the warning and prevents the employee from having a one-sided negative personnel file. In case an employee receives an official warning, the objection generally includes:

• A response indicating the employee’s disagreement with the warning;
• The reading 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 is well advised to include the employee’s objection to the official warning in the personnel file. This gives an employer the evidence for possible dismissal proceedings in one 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 known as a one-sided negative personnel file.

How long is a warning valid?

There is no fixed period of validity for an official warning. In practice, the seriousness of the offence is ‘toned down’ over time, especially when no new offences take place. However, an employer can, when the offence is serious, put the period of validity in writing as well as the consequences attached to a new (similar) offence or a subsequent incident within the term of the warning. If the term of the warning has expired, it can be assumed that the warning is less forceful. In this case, the official warning is removed from the personnel file.

Can an official warning expire?

No official regulations have been drawn up around the validity or expiry of an official warning. The employer himself, or in consultation with the employee, can decide how long the warning remains in force and whether it will be removed from the personnel file after some time. It is wise to put these agreements in writing, specifying the conditions attached to it, so that both parties know what expectations are set.

When does an official warning expire?

The main purpose of the official warning is to prevent a repetition of the employee’s alleged behaviour. When does an official warning lapse? Usually, an employer can decide to let the official warning lapse or to withdraw the warning if the employee does not violate any company rules during the period of validity of the warning and if no multiple official warnings follow.

Think carefully before issuing a warning

The more you take notes, the stronger you are. Especially when a situation turns into a suspension, dismissal or proceedings. Will the decision be challenged by the employee? The circumstances of a situation are always looked at closely by a judge. It, therefore, goes without saying that it is important that facts are correct. This is also the case when an employee is summarily dismissed.

In many cases, we advise you to think carefully about whether you decide to issue an official warning, proceed to summary dismissal or initially issue an unofficial warning to an employee verbally. In most cases, an official warning is less risky for you as an employer and can support heavier sanctions, such as dismissal, in the future. Do you have any questions or want to seek advice? Then feel free to contact one of our lawyers specialising in employment law via email, phone or the contact form.