A warning is nothing more than a reprimand by the employer. The employer admonishes the employee to comply with their contractual obligations by pointing out a breach of duty and calling on them to behave in accordance with the contract in the future. In addition, the employer announces consequences in the event of another breach of duty, in particular by threatening dismissal. A warning therefore consists of the following four parts:

• Reference to obligation, if necessary with reference to employment contract, guidelines, etc.
• Detailed and concrete description of the behavior and what is objectionable about it;
• Request to change this in the future;
• Threat of legal consequences for the continued existence of the employment relationship in the event of recurrence (threat of termination).

A warning is to be distinguished from a mere complaint or admonition. Although these also call on the employee to comply with their obligations, they do not contain any threat of consequences. In principle, a warning can be used to reprimand any breach of contractual obligations, including those that would not be sufficient to justify dismissal.

Requirements for an effective warning

In principle, not only the employer is entitled to issue a warning, but all employees who can issue binding instructions regarding work performance.

There are no special formal requirements for warnings. Theoretically, they can also be issued verbally. However, for reasons of proof alone, it is always advisable to give employees a written warning; and to have the warning issued by a person who is authorized to do so!

In addition, when issuing a warning, care should be taken to ensure that the employee actually takes note of it. This is because the warning has only been received and therefore only become effective if it is acknowledged. Otherwise, it cannot fulfill its informative and warning function.

In principle, there is no deadline within which the warning must be issued after the breach of duty. It is also not necessary for the employee to be subjectively reproachable for their breach of duty. The breach of duty must merely have been caused by controllable conduct on the part of the employee.

The decisive factor is that the employee has genuinely breached an obligation and that the employer specifically states this. A general reference to the fact that the employee has breached their contractual obligations is not sufficient. The warning would then be ineffective. Important: If several breaches of duty are reprimanded in a warning, but only one of them does not apply, in many cases the entire warning is ineffective – i.e. also with regard to the other breaches that the employer has actually correctly warned about.

What should you do if you have already received a warning letter?

There are various ways in which employees can deal with a warning letter. For example, a counterstatement or an objection can be submitted to the personnel file. In addition or instead, you can also involve the works council or staff council. Another option is to urge the employer (if necessary by taking legal action) to withdraw the warning. It is important to bear in mind that evidence will be taken in court proceedings, for which the employee should be prepared. Anyone considering taking legal action should therefore seek legal advice as soon as possible.

In many cases, however, it will be more effective to first work towards de-escalating the situation. In a meeting in which the employer hands over the warning, the employee should initially accept it without commenting on its content. Even if the employee asks for a statement, caution is advised. A hasty statement at the urging of the employer is usually not advantageous for employees. However, it can be helpful to make a conditional „face-saving“ apology for any misconduct. This approach could be useful, for example, if it is unclear whether the warning was justified or not.

Connection between warning and termination

The link to the right of termination is what makes the warning so important. As a rule, an employer can only effectively dismiss an employee for conduct-related reasons if an effective warning has been issued beforehand. This is dictated by the principle of proportionality: a warning is a milder measure than dismissal. However, both can remedy a breach of contract. For this reason, termination is usually only permissible if a warning has already been issued without success.

By issuing a warning, the right of termination for this breach of duty expires. The matter for which the warning was issued is then exhausted. If the employer still wishes to dismiss the employee for the same matter, he must reserve the right to do so in the warning or make it clear in some other way that he does not consider the matter to be „settled“ with the warning. A warning may lose its effect after the employee has behaved properly for a longer period of time. However, this depends heavily on the individual case. In this case, another warning would be necessary before a dismissal for a similar breach of duty is issued. If a situation is not sufficient for dismissal, the warning can still be issued after an ineffective dismissal.

A warning is only dispensable before a dismissal is issued if a change in behavior is not to be expected in the future despite a warning or if there has been a particularly serious breach of duty, the unlawfulness of which is obvious.

Employees should carefully consider whether they want to take action against an ineffective warning, especially if they expect their employer to issue a dismissal in the near future. The employer cannot use an ineffective warning to justify a dismissal. The employee can still argue that the warning was ineffective in the proceedings in which the dismissal is at issue. If it then becomes clear that the warning was ineffective, this point can be used to the employee’s advantage in negotiations about a severance payment.

Warning in employment law: Filing in the personnel file and informing the works council/staff council

A warning is usually placed in the employee’s personnel file. If the warning is unjustified or the employer no longer has a legitimate interest in keeping it in the personnel file, the employee is entitled to have it removed from the personnel file.

If there is a works council/staff council, it will receive a copy of the warning for information purposes

Are you unsure how to formulate a warning letter or have you even received a warning letter under employment law? Get in touch with us!