If you, as an employee, receive a legal warning from your superior, the first feeling is uncertainty. What have I done wrong? Is my employer even allowed to give me a warning in this form? Is the warning justified? Is it merely a dismissal strategy? At this point, it is essential to remain calm and not seek confrontation with the employer. By reacting rashly, you may aggravate your own personal and legal situation.
Schlun & Elseven Rechtsanwälte offers employees and employers comprehensive legal advice and representation in all matters of labour law, including employment law warning letters and dismissals. Our certified specialist lawyers in German employment and labour law will be happy to examine your warning or dismissal specifically about its legality.
What is the Legal Significance of a Warning Letter in Germany?
A warning is issued when the employer wants to reprimand an employee for behaviour which, in his view, violates the employee’s contractual obligations under the employment contract. In doing so, the employer also clarifies that the employment relationship is in danger.
The warning is thus often the precursor to an ordinary dismissal due to the employee’s misconduct during work. Given the principle of proportionality, in labour law, it is regularly considered a precondition for dismissal for conduct-related reasons and has a warning function for the employee.
Taking Action Against the Warning Letter
If the employer relies on a warning letter to dismiss you, having it reviewed by an employment lawyer makes sense because the warning can be faulty and, thus, ineffective for numerous reasons.
First, the warning can already be formally faulty if its content is incomplete.
- What is the specific misconduct of the employee?
- Why does this conduct violate the employment contract?
- The employer requests the employee to behave per the contract in the future.
- What are the consequences of repeated misconduct?
The warning must (1) specifically name the employee’s misconduct, i.e. describe the place, time and the employee’s behaviour. It must also contain a statement of why (2) this conduct violates the employment contract. The employer must (3) request the employee to behave per the contract in the future. Finally, the warning letter (4) must clearly state what consequences repeated misconduct will have for him.
Suppose serious misconduct is reprimanded with a warning letter, and the employer subsequently wants to terminate without notice for the same reason. In that case, they must first wait for a new, similar misconduct because, with the warning, they have already expressed that they are giving the employee another chance. Therefore, without a new violation, they cannot argue that continuing the employment relationship is unreasonable for them forcing them to terminate the employment relationship extraordinarily.
A dismissal for renewed misconduct based on a past warning is also not permitted if the misconduct on which the warning was based already dates back approximately 2-3 years. The employer can no longer refer to it in such cases.
The complexity of the labour law situation may vary from case to case. Our lawyers will support you with equal competence and commitment and explain your legal options and risks.
Practice Group: German Employment Law
Practice Group:
German Employment Law
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