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Warning Letter in the Workplace: German Employment Law

If you, as an employee, receive a warning letter from your superior, the first feeling is one of insecurity. It might lead to you questioning what you have done wrong and other general doubt. It might also lead you to ask whether your employer is entitled to issue with a warning letter and whether such a warning is justified. Furthermore, it could lead you to question whether it is merely a dismissal strategy on the part of your employer. It is important at this point to remain calm and not to seek confrontation with the employer, which could possibly aggravate your own personal and legal situation.

At Schlun & Elseven Lawyers out employment expers will be at your side during this time. Our attorneys advise and represent both employees and employers in all questions of labor law, including the issuing of formal warning letters. We understand both sides of the conflict and, when it comes to employers, we can therefore examine your warning letter and ensure that is satisfies the requirements and that it is legally justified. As our employment team is made up of two certified specialists in the field of German employment law, our lawyers are experienced in this field and can provide the expert advice you are looking for!

In this article, we will provide a brief overview of warning letters in German employment law. However, if you are looking for specialised assistance, then please make sure to contact us directly using the contact form below this article.

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What is the Legal Significance of a Warning Letter?

A warning is issued if the employer wants to reprimand an employee’s conduct that violates the employee’s contractual obligations under the employment contract. At the same time, the employer thereby indicates that, in the event of recurrence, the employment relationship is in danger from their point of view. The warning letter is thus often the precursor to a regular termination due to misconduct of the employee during work. With regard to the principle of proportionality, it is regularly a precondition for a dismissal for conduct-related reasons in employment law and has a warning function for the employee. Therefore, warning letters should be issued when the misconduct is of a level that it puts the employment relationship at risk. Contact our experts to ensure that the principle of proportionality is adhered to.

How you can Proceed against a Warning Letter in Employment Law

At the moment of the warning letter itself, you can first contact the employer and ask them to not place the warning letter on the personal file record. If he or she refuses to do so, you have the right to submit a so-called counter-application. In this way you can also add your view of the matter to the file.

If you believe that the warning notice was issued to you in error, you have the right to submit a counter-statement and to sue for the removal of the warning notice. In this case, a lawyer specialising in labour law can assess your chances and risks. Making sure that the warning letter is not on your personal file is very important when it comes to finding future employment at other companies should you need to change your job in the future.

Warning Letter in Employment Law: Termination Cases

If the employer invokes a warning letter in order to dismiss you, it is advisable to have the warning letter checked by a lawyer for labour law. This is because the warning notice can be incorrect and therefore invalid for a number of reasons.

  • First of all, the warning letter may already be formally incorrect if its content is incomplete.
  • It needs to state the exact alleged misconduct of the employee, the warning letter should not be vague in this regard.
  • The letter should state how this alleged misconduct comes into conflict with the employee’s employment contract and its conditions.
  • The warning letter should state that the employer expects the employee to behave in accordance with the contract in the future.
  • Finally, the letter should outline the consequences for repeat offences.

It must (1) specify the misconduct of the employee in concrete terms, i.e. place, time and the employee’s conduct. It must also explain why (2) precisely how this conduct violates the employment contract. The employer must request the employee (3) to behave in accordance with the contract in future. Finally, the warning notice (4) must clearly state what consequences repeated misconduct will have for the employee.

If serious misconduct is reprimanded with the warning and the employer subsequently wishes to terminate the contract without notice for the same reason, the employer must first wait for a renewed, identical misconduct. Because with the warning notice they have already expressed that they are still giving the employee a chance. Therefore, they can no longer argue – without a new violation – that a continuation of the employment relationship is unreasonable for them, and that they must terminate the employment relationship extraordinarily.

A dismissal for renewed misconduct with reference to a previous warning is also not lawful if the misconduct on which the warning is based was committed approximately 2-3 years ago. The employer can then no longer invoke it.

The labour law details may vary in complexity from case to case. Our employment law specialists will support you in your case and explain your individual chances and risks. Contat us today to find out more.

Practice Group for Employment Law in Germany

Dr. Thomas Bichat Lawyer

Dr. Thomas Bichat
Certified Employment Lawyer