Final performance warning for first incompetence

Where you’ve held a formal performance meeting, if the employee’s poor performance is sufficiently serious, you may be able to go straight to issuing them with a final performance warning.

Appropriate action

The Acas Code of Practice on Disciplinary and Grievance Procedures, which covers both misconduct and poor performance situations, sets out a three-stage warnings process in standard cases. Where the employee is found to be performing unsatisfactorily, this comprises a written warning, then a final written warning if there’s a failure to improve performance within a set period and, finally, dismissal. However, the Acas Code also says that if an employee’s first unsatisfactory performance is “sufficiently serious”, it may be appropriate to move directly to a final written warning, which might occur where the employee’s actions have had, or are liable to have, a serious or harmful impact on the business.

Capability procedure

Our Capability Procedure follows the Acas Code and provides that a first instance of serious poor performance can result in a final performance warning being issued. Bear in mind that our procedure is intended to apply in those situations where the employee can’t perform to the standards required (due to an inherent lack of capability) as opposed to won’t perform (where they’re capable of the role but aren’t performing because of laziness, carelessness or a negative attitude). You can use our Disciplinary Procedure in the latter situation. If, after investigation, you’re still unsure which procedure to use, give the employee the benefit of the doubt and opt for a capability procedure.

Final performance warning

Our Final Performance Warning for First Incompetence is similar in substance to our Warning/Final Warning of Poor Performance, but it makes clear that you’ve deemed it appropriate to move directly to a final warning on this occasion, having carefully considered the employee’s explanations and taking account of the seriousness of their poor performance. Whilst we’ve also then provided for a performance improvement and review period in the normal way, we’ve also added that a further single incident of serious poor performance either during this period or otherwise whilst the final warning is still active may result in dismissal.

Sufficiently serious poor performance

The vast majority of poor performance cases won’t justify moving straight to the final warning stage. This is because poor performance tends to be an ongoing issue that you’re monitoring, rather than a one-off incident. If though there is a single incident of serious incompetence on an employee’s part, that’s where you might want to consider a final warning, such as where the incident had particularly serious consequences or placed your business at risk of financial harm. You’ll first need to investigate the facts and all the surrounding circumstances, such as whether the employee had ill-health or domestic problems, was fully aware of what was required of them, had been sufficiently trained, had the proper equipment and support in place, etc. You may also need to explore whether the problem was wholly or partly the result of poor management or an excessive workload.