The law requires at least one relevant prior written warning from the employer regarding the employee's behavior before a behavioral dismissal can be pronounced. In practice, this is done by the employer either verbally or in writing. However, not every expression of intent from the employer to the employee actually constitutes an effective warning.
The courts have defined a warning as one in which the employer criticizes poor performance in a manner that is sufficiently clear for the employee to recognize, and clearly indicates that the content or existence of the employment relationship is at risk if the behavior is repeated. It is not necessary to threaten specific measures under termination law, in particular, termination.
According to this definition by the Federal Labor Court, the warning has a threefold purpose:
- It should formally record the behavior that is the subject of the complaint (documentation function),
- It should indicate to the employee that the employer views a certain behavior as contrary to the contract (information function),
- It should also warn the employee that if the behavior is repeated, it may jeopardize the employment relationship (warning or threatening function).
If the employer wishes to issue a proper written warning, this requires a specific, detailed description of the breach of duty objected to and a clear and unambiguous indication of the risk to the content or existence of the employment relationship in the event of future similar breaches of contract. In practice, sweeping statements or mere value judgments are repeatedly found instead of specific facts. These do not fulfill the documentation function required by case law in a written warning, with the further consequence that the written warning as a whole is invalid.
Furthermore, a written warning must be issued by a person authorized to issue a written warning. This includes not only superiors authorized to give notice, but all superiors authorized to issue instructions who are authorized to give binding instructions regarding the place, time and manner of the work performance owed under the employment contract.
If the warning is to be legally effective, it is a prerequisite that the employee is aware of the alleged deficiencies in performance.
Formal requirements do not have to be adhered to. However, a written warning is recommended because the employer is required to demonstrate and prove that the warning was properly issued before giving notice of termination.
There is no deadline by which the warning must be issued for the misconduct described in it. However, it should be issued promptly after the misconduct becomes known.
If a written warning contains incorrect factual assertions or if its content is not sufficiently specific, the employee is not limited to his right of reply or his right of appeal. He can demand that it be removed from the personnel file. If the employment relationship has ended, the employee is no longer entitled to demand that a wrongly issued warning be removed from the personnel file.
If the employer does not comply with the employee's request to remove the warning from the personnel file, there is the possibility of asserting the claim in court. However, there is no obligation to take action against an invalid warning. If the employee has therefore refrained from having the justification of the written warning checked in court, he is in principle not prevented from asserting the ineffectiveness of the written warning in a later termination suit. This is because neither an ancillary obligation under the employment contract nor an obligation of the employee to take legal action against a written warning can be derived from the right to have a written warning reviewed in court outside of the unfair dismissal proceedings. This is also not in the interest of the parties to the employment contract. Apart from the fact that it is uncertain whether a warning will ever be of significance under the law governing protection against dismissal, existing employment relationships would be strained by the legal disputes that would then be necessary to determine the justification of the warning. For the employee, such lawsuits can at least de facto jeopardize the employment relationship. When a written warning is issued, the employee should therefore carefully consider whether he actually wants a court battle over this.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.