Warning letter in labour law

Have you received a warning letter under labour law and don't know how to react?

Then you should act quickly. A warning letter in the Employment Law is more than just an admonition - it is often the precursor to Termination. Lawyer Martin Reichelt in Dresden will check your warning letter for effectiveness and advise you on the right next steps.

In the area of labour law warnings, many warnings are incorrect in terms of form or content. In such cases, you have a good chance of having the warning removed from your personnel file. At the same time, it is important to set the right course so that the warning does not turn into a dismissal.

What is a warning letter in labour law?

A warning is a formal reprimand by the employer in which he criticises specific misconduct by the employee. In labour law, it has a Triple function:

1. Note function: The employer draws the employee's attention to specific behaviour in breach of contract.
2. Back function: The behaviour is expressly reprimanded as a breach of duty.
3. Warning function: The employer threatens consequences under labour law in the event of a repeat offence - in particular dismissal.

A warning is only effective if all three functions are fulfilled. If there is no explicit threat of consequences, it is merely a warning. Admonition, which is not sufficient as a precursor to cancellation.

Warning letter under labour law - formal requirements

For a warning to be effective, it must fulfil certain requirements:

• Concrete description of the misconduct: The warning must precisely describe the behaviour complained of - with date, time and specific facts. Generalised accusations such as „You are often late“ are not sufficient.
• Designation as breach of duty: The behaviour must be classified as a breach of contractual obligations.
• Threat of consequences: In the event of a repeat offence, the employer must threaten consequences under labour law, up to and including dismissal.
• Access: The employee must receive the warning - verbally or in writing. In practice, warnings are almost always issued in writing for reasons of proof.

Important: A warning letter does not require any particular form. It does not have to be labelled as a „warning“ - the content is decisive. An email can also constitute an effective warning.

Frequent reasons for warnings in practice

When it comes to warnings under labour law, there are typical reasons why employers issue warnings:

Behavioural reasons

• Unpunctuality: Repeated lateness - even a few minutes can be enough if it accumulates
• Unexcused absence: Absence from work without reporting sick or without informing the employer in good time
• Late notification of illness: The certificate of incapacity for work is not submitted within the prescribed period
• Refusal to work: Failure to comply with authorised instructions from the employer
• Offence: Insulting superiors, colleagues or customers - including on social media
• Alcohol in the workplace: Consuming alcohol during working hours or appearing under the influence of alcohol
• Private Internet use: If this is expressly prohibited or reaches an excessive level
• Violations of safety regulations: Non-compliance with health and safety rules or hygiene regulations
• Unauthorised secondary employment: Pursuing secondary employment without the employer's consent if this is subject to authorisation in the employment contract
• Violation of the smoking ban: Smoking outside the designated areas or times

Performance-related reasons

• Poor performance: Significantly below the average work performance
• Faulty work: Repeated, avoidable errors despite notification
• Non-compliance with deadlines: Repeatedly missing appointments or deadlines

Not admonishable are usually personal reasons such as illness, lack of suitability or declining performance due to age. In this case, dismissal for personal reasons may be considered instead - usually without prior warning.

Received a warning letter - what to do?

If you have received a warning letter, you should take the following steps:

1. Keep calm: Do not react hastily. Do not sign anything that goes beyond the mere receipt of the warning letter.
2. Secure warning: Make a copy and note the exact time of receipt.
3. Document the facts: Reconstruct the facts of the case from your point of view. Secure evidence (e-mails, time recording, witnesses).
4. No premature counterstatement: Do not write a counterstatement immediately - this can also be detrimental under certain circumstances.
5. Consult a lawyer: Have the warning letter signed by a lawyer for Employment Law for their effectiveness. Attorney Reichelt will advise you on whether and how you should react.

Options for responding to a warning letter

After receiving a warning letter, you have several options available to you. In the case of a warning letter in labour law, the right strategy depends on your individual case:

1. counterstatement to the personnel file

You can draw up a written counterstatement, which must be included in the personnel file (Section 83 (2) BetrVG). In it, you describe the facts from your point of view and refute the allegations. Advantage: Your view is documented. Disadvantage: They may provide the employer with additional information.

2. demand out-of-court removal

If the content of the warning is incorrect, disproportionate or formally ineffective, you can ask the employer to remove it from your personnel file. A letter from a lawyer significantly increases the chances of success.

3. action for removal

If the employer refuses, you can take legal action at the labour court to have the warning removed from your personnel file. There are No deadline - You can still sue years later.

4. accept the warning and wait and see

Sometimes it is tactically wiser to accept the warning initially and only assert its ineffectiveness in the event of a subsequent dismissal. This is often the right strategy if the employment relationship is otherwise intact and you want to avoid an escalation.

5. complaint to the works council

If there is a works council in the company, you can lodge a complaint with it (Section 85 BetrVG). The works council can act as a mediator and lobby the employer to withdraw the warning.

Warning as a precursor to dismissal

As a rule, a warning is required in the event of a dismissal for behavioural reasons. mandatory requirement. The Federal Labour Court generally requires a prior relevant warning before the employer may terminate the employment contract for conduct-related reasons (ultima ratio principle).

Relevant means: The warning must refer to a similar breach of duty. A warning for lateness does not justify dismissal for unauthorised internet use.

Exception: A warning is not required for serious breaches of duty. These include theft, fraud at the employer's expense or physical assault. In such cases, the employer can terminate the contract immediately - even without notice.

When does a warning letter lose its effect?

A warning letter is not valid indefinitely. According to case law, it loses its warning function if:

• Since the warning Longer period has elapsed and the employee has behaved without complaint since then (typically 2 to 3 years depending on the severity of the offence)
• The employer has not reported similar misconduct after the warning. repeatedly tolerated without issuing another warning
• The warning letter indeterminate in content and does not describe the breach of duty concretely enough

Right to removal after expiry of time: According to the case law of the Federal Labour Court, an employee can also demand the removal of a warning from the personnel file if the warned behaviour is no longer relevant to the employment relationship and the employer has no legitimate interest in retaining it.

Warning by the employee

Employees can also warn their employer. This is less well known, but an important tool in certain situations:

• Repeated salary arrears: The employer pays the salary late or incompletely
• Violations of occupational health and safety regulations: Hazardous working conditions are not eliminated
• Bullying: The employer does nothing against bullying by colleagues or superiors despite being aware of it
• Violation of the Working Hours Act: Ordering excessive overtime without compensation
• Non-compliance with holiday entitlements: Refusal to take the statutory minimum holiday

The warning by the employee is a prerequisite for a extraordinary termination by the employee (§ 626 BGB), which may give rise to a claim for damages and an entitlement to unemployment benefit without a qualifying period. Seek advice from Mr Reichelt before taking this step.

Ineffective warning - common mistakes made by the employer

In practice, numerous warning letters in the area of labour law are incorrect. The most common mistakes:

• Sweeping accusations: „You are often late“ without giving specific dates and times
• Wrong facts: The incident described did not take place or is presented in a distorted way
• Disproportionality: The accusation is so minor that a warning is not justified (e.g. being a few minutes late once)
• Lack of threat of cancellation: Without an explicit threat of consequences, there is no warning, only an admonition
• Delayed warning: There is an unreasonably long period between knowledge of the incident and the warning - the employer has thus implicitly tolerated the behaviour
• Several accusations in one warning: If even one of the accusations is unjustified, the entire warning may be invalid
• Warning despite knowledge of the employer: The employer was already aware of the circumstances and tolerated the behaviour

Attorney Reichelt analyses every warning letter for these and other errors and recommends the best course of action for you - whether a counterstatement, a request for removal or a strategic wait-and-see approach.

Frequently asked questions about warnings

How many warnings before a dismissal?

There is no fixed rule. In principle, one relevant warning is sufficient as a prerequisite for dismissal for conduct-related reasons. In the case of minor offences, however, courts may expect several warnings.

Does a warning have to be in writing?

No, a warning can also be issued verbally. In practice, however, it is almost always issued in writing for reasons of proof. A verbal warning is difficult to prove in the event of a dispute.

Can I take legal action against a warning letter?

Yes, you can sue the labour court to have the warning removed from your personnel file. There is no time limit for this - you can also take legal action years later. However, you should discuss with a lawyer whether it makes sense to take legal action.

Does a warning expire after a certain period of time?

There is no statutory expiry period. However, according to case law, a warning letter loses its warning function after approximately 2 to 3 years of complaint-free behaviour. In particularly serious cases, the effect may last longer.

Can the employer issue multiple warnings for the same incident?

No, only one warning may be issued for one and the same incident. If the employer issues several warnings for the same incident instead of dismissing the employee, this can be considered a waiver of the right to dismiss.

Can a warning also be issued in the Trial period be pronounced?

Yes, warnings are also possible during the probationary period. However, as the probationary period can be terminated without any particular reason, warnings are less important during the probationary period than after the acquisition of general protection against dismissal.

This article is intended to provide general information and does not replace individual legal advice. For advice tailored to your case, please contact Lawyer Martin Reichelt in Dresden.