Warning: form, consequences, judgments

What is meant by a warning?

A warning is basically the "yellow card" that the boss shows an employee to make them aware of a breach of duty at the workplace and to ask them to stop the behavior that is contrary to the contract.
The most common warning reasons in practice are: unauthorized private telephone calls, unexcused absence, frequent late arrival, unauthorized start or extension of vacation, drunkenness during work, performing an unauthorized secondary activity, simulated illness, private hobbies during working hours, violation of the smoking ban, Failure to follow instructions, poor work performance and violations of work regulations.

As a rule, the warning is the preliminary stage to the termination and thus has a warning and announcement function. Therefore, you should never take a warning lightly. However, not every warning from the employer is to be regarded as a legally effective warning.

What should a legally valid warning letter look like?

A warning can be issued both verbally and in writing. For reasons of evidence, however, employees are usually warned in writing. In terms of content, the warning must meet the following criteria:

It must describe the employee's reported misconduct as precisely as possible, e.g. For example: On (date) you showed up for work at 9.15 a.m. instead of 8.30 a.m. Two days later, on (date), you were late by 35 minutes (work started at 9:05 a.m.) and on (date) again by 40 minutes (work started at 9:10 a.m.).

In the warning, the employer must request the employee to behave in accordance with the contract in the future.

In addition, the employee must be threatened with termination of the employment relationship in the event that the warned misconduct repeats itself.

It is important that the warning must actually have been received by the employee in order to be legally valid. The employer is responsible for proving this. Copies of the warnings are usually filed in the personnel file.

What are the consequences of a warning?

If the warned misconduct by the employee recurs, the employer may terminate the employment relationship. Depending on the nature of the breach of contract, the boss can give an ordinary, immediate or a so-called change notice. In principle, at least a warning is required before any termination (ordinary or immediate). However, if it is a matter of misconduct in the area of trust, for example theft or another criminal act, termination can also take place without prior warning.

In the case of less serious breaches of duty (e.g. private telephone calls from the workplace), however, a single warning before the termination is not sufficient. Otherwise, however, a warning must never be issued for the same incident and then terminated immediately. In principle, the employee must be able to trust that he still has a chance.

Wiederholt sich das abgemahnte Fehlverhalten oder kommen weitere, vergleichbare Pflichtverletzungen des Arbeitnehmers hinzu (z. B. Verlassen des Arbeitsplatzes ohne vorherige Abmeldung, unterlassene Mitteilung der Arbeitsverhinderung), darf der Arbeitgeber für eine Kündigung auch auf bereits abgemahntes Verhalten zurückgreifen. Allerdings gilt dies zeitlich nicht unbegrenzt. In der Regel werden Abmahnungen nach etwa zwei Jahren wirkungslos. Dasselbe gilt, wenn der Arbeitnehmer seine Duties längere Zeit korrekt erfüllt oder der Arbeitgeber ähnliche Fehltritte bei anderen Mitarbeitern unbeanstandet hinnimmt.

It should be noted, however, that warnings in the personnel file can have a negative effect on later assessments and thus hinder professional advancement. Therefore, warnings should be taken seriously.

How can you defend yourself against a warning?

First of all, you should check whether the warning is justified at all, i.e. whether you have actually acted contrary to your duty in the manner complained of. If this is not the case, you can request that the warning be removed from the personnel file. As a first step, it is advisable to have a personal conversation with your supervisor, in which you present your objections to the warning in a friendly and objective manner.

If the boss is not prepared to withdraw the warning, you theoretically have the option of suing the labor court to have the warning removed from the personnel file. However, this step would be extremely harmful in terms of the working atmosphere if you continued to work in the company. Therefore, it is better to write a reply in which you correct the wrongly warned facts from your point of view. You should add this reply to your personnel file so that your objection is at least documented.

You should proceed in the same way if the warning contains incorrect facts, disapproving statements or misleading assessments. For the reasons mentioned above, you should better refrain from a correction by legal action.

If the warning is basically justified, a reply is also recommended. Try to provide valid reasons for your misconduct and make it clear that this was just an exceptional situation so that the warning does not give the impression that you are generally working incorrectly.

Attention: If the warning contains any formal error, for example if it does not describe the behavior complained about in sufficient detail (see above), you must under no circumstances draw your boss's attention to this shortcoming. In such a case, the warning would not be legally effective and could therefore not justify termination.

However, if the employer were to find out about this formal error, he would have the option of subsequently making the warning "watertight". So keep your knowledge to yourself and still behave in accordance with the contract in the future. Then you are on the safe side.

How do you behave correctly after a justified warning?
Since warnings are generally not to be trifled with due to the tense situation on the labor market, you should do everything possible after such a justified warning shot to restore the relationship of trust between you and your boss. So from now on, behave absolutely correctly in the company and show commitment, then your slip will soon be forgotten.

However, you should not try to get rid of the warned incident with a formal apology (exception: you have insulted or injured the boss or an employee in any way). If the warning is followed by a dismissal, you would have recognized the legitimacy of the warning with an apology and thus reduced your chances in a later process before the labor court.

Warning - important judgments

Hearing before warning
Before warnings that are added to the personnel file and can therefore be detrimental to the employee, the employer must first hear the person concerned. This follows from the employer's duty of care, who must also ensure that the personnel file gives a correct picture of the employee. If the employee is not heard beforehand, the warning must be removed from the personnel file.
ArbG Frankfurt / Oder, April 7, 1999 —AZ: 6 Ca 61/99

Receipt of the warning
The prerequisite for a behavior-related termination is that the employee has been given at least one relevant warning beforehand. In the event of a dispute, the employer has to prove that the warning actually reached the employee. A termination can therefore be ineffective if the warning is returned as undeliverable because the employee has since moved.
LAG Berlin, September 15, 1995 - AZ: 2 Sa 13/95

Removal of the warning from the personnel file
Ein Arbeitnehmer kann die Entfernung einer zu Unrecht ausgesprochenen Abmahnung aus der Personalakte auch noch nach seinem Ausscheiden aus dem business verlangen. Das Bundesarbeitsgericht begründete diesen Rechtsanspruch damit, dass sich auch noch zu diesem Zeitpunkt eine solche unberechtigte Abmahnung unter Umständen nachteilig für den betroffenen Arbeitnehmer auswirken könne, so beispielsweise bei der Zeugniserteilung oder wenn künftige Arbeitgeber bei dem alten Arbeitgeber Auskünfte über den Arbeitnehmer einholen. Es könne auch nicht ausgeschlossen werden, dass die Personalakte und damit die Abmahnung weiteren Personen zugänglich gemacht wird, wodurch die Ehre des früheren Mitarbeiters verletzt werden könne.
BAG, September 14, 1994 - AZ: 5 AZR 632/93