First aid in the event of a warning from the employer


Anyone who receives a warning letter in an employment relationship is often unsettled. What does it actually mean? Do I have to defend myself directly? Who can I turn to if I disagree with the accusations? 

We will inform you about the legal background and tell you what to do if you have received a warning letter.  


1 What exactly is a warning letter?


With a warning letter, the employer warns the employee of breaches of duty arising from the employment relationship. It expresses that it does not agree with the employee's behavior and considers this to be a breach of contract. The employee is therefore warned in advance. Such a formal warning is usually placed in the personnel file and kept there.

The employment contract regulates the mutual obligations of employee and employer. In addition to the main performance obligations (the employee's work performance and the employer's obligation to pay a salary, for example), the employment relationship is characterized by many so-called secondary obligations for both parties. For example, the employer has a duty of care towards its employees and must - simply put - look after the well-being of its employees. Employees, on the other hand, must be careful in their work, prevent damage to the company and comply with the employer's instructions. If the employee breaches one of their duties, the employer can issue a warning for this behavior and, in the event of a repeat offense, terminate the employment contract. The warning is therefore often the beginning of the end and fulfills an important function in the preparation of a dismissal on the employer's side.


2 What is the employer allowed to warn?


The employer has the right to issue directives in accordance with Section 106 GewO. He may therefore specify the exact form of the duties under the employment contract. The employee must comply with these instructions. If he fails to do so, he can be warned. However, this does not apply without restriction. Of course, only those instructions that are permissible must be followed. This is where the greatest potential for dispute lies if a warning has been issued. The warning often contains accusations that the employee disputes. This can relate both to the presentation of the facts ("That never happened!") and to the parties' differing understanding of the extent to which the accused behavior constitutes a breach of duty ("Yes, but that's not so bad!"). If the parties dispute whether the facts as described actually happened, the employer bears the burden of proof for its version of events. In such cases, the employee should therefore demand appropriate evidence of the alleged misconduct and check whether they can refute it with their own evidence (witnesses, records, etc.).

However, the parties often argue about whether the employee's behavior was justified or not. This is because the employee is allowed to oppose instructions that are unlawful. Work instructions must not be arbitrary. This means that the interests of the employee must always be taken into account with every work instruction. A balance must be struck between the interests of the employer (organization of the company, economic efficiency, industrial peace, etc.) and those of the employee. These are naturally individual. For example, an instruction to change working hours without a valid reason may constitute an impermissible work instruction for a single father of a minor child if this causes him problems in caring for his child. He would have a reason worthy of consideration for not following this instruction.

Accordingly, a warning would most likely be ineffective.

Individual work instructions are also sometimes used in an attempt to make the unloved employee particularly "uncomfortable" so that they may leave the company voluntarily. If the employee does not follow these instructions, they are often warned immediately. Such warnings can usually be defused by demonstrating that they constitute unjustified "special treatment" to the detriment of the employee.

By the way: Even an oversight can be cautioned. Of course, not every minor offense or carelessness. But if a small mistake has serious consequences and could have been avoided, the warning can be effective.

3. how must a warning be issued?


In all cases, the warning must be issued in close temporal relation to the alleged conduct. As a rule of thumb, the employer has around 14 days from the moment they become aware of the relevant facts to issue the warning. Theoretically, this can also be done verbally. For reasons of proof, however, the vast majority of warnings are issued by letter or email.

A warning must also always include a reference to the fact that there may be consequences under employment law, including dismissal, in the event of a repeat offense.


4 When do I have to act?


If you have received a warning letter, you do not have to take action against it immediately. It is also possible to challenge the warnings as part of subsequent dismissal protection proceedings. Strictly speaking, there is no such thing as "too late" - as in the case of dismissal, for example. Nevertheless, action should be taken swiftly against the warning in order to comply with any expiry periods under the employment contract.

However, anyone intending to apply for a new employer is advised to challenge the warning directly and ask the employer to remove it from the personnel file. This is because the employer is entitled to provide information to potential new employers about all facts and circumstances that are directly related to work. Under certain circumstances, this can lead to the employer gaining a false impression of you. A warning in your personnel file can also justify a bad reference. In this case, you have two fronts to fight on if the reference does not meet your expectations - the warning and the reference.

Our recommendation is therefore to take action if you receive a warning letter. It also demonstrates strength to defend yourself against a warning. In this way, you can put a stop to further possible warnings or even dismissal if you show that you have sought legal advice. Depending on the situation, the receipt of a warning letter can also initiate negotiations on the termination of the employment relationship with severance pay. The most important thing is to stay calm and get support. 

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