Warning letter received
Received a warning letter – your rights and options as an employee
A formal warning is more than just a reprimand – it is the formal first step towards dismissal. However, many formal warnings are flawed and can therefore be challenged. If you respond correctly, you can mitigate the impact of a formal warning or have it removed from your personnel file. Our specialist employment lawyers in Augsburg will review your formal warning and advise you on the best strategy.
What is a formal warning and what is its purpose?
According to the case law of the Federal Labour Court, a formal warning under employment law fulfils three functions: it identifies the specific misconduct (reprimand function), calls on the employee to change their behaviour (warning function), and threatens consequences under employment law, up to and including dismissal, in the event of a repeat offence (documentation function). If any one of these three functions is missing, the warning is invalid.
The warning is, in principle, not subject to any formal requirements – it may be issued verbally or in writing. In practice, it is almost always issued in writing and included in the personnel file. Contrary to common belief, it is not necessary for the immediate supervisor to issue the warning: any person within the company with the authority to issue instructions is authorised to do so. However, the warning must actually be received by the employee.
Important for employees in Augsburg and the surrounding area: A warning alone does not terminate the employment relationship. However, it is regularly a prerequisite for dismissal on grounds of conduct – the employer must, as a rule, have issued at least one valid warning prior to dismissal.
Common mistakes – when a warning letter is invalid
Many written warnings that we review at our Augsburg law firm contain errors of form or substance. The most common shortcomings are that the misconduct is not described in sufficient detail – general allegations such as ‘poor work performance’ or ‘uncooperative behaviour’ are not sufficient. The written warning must specify the date, time and the exact facts of the case.
Other typical errors include: a lack of, or unclear, warning of consequences under employment law; untrue factual claims; a disproportionately long period between the incident and the warning letter; warnings issued for trivial matters or for behaviour that the employer had previously tolerated; and the absence of a request for a change in behaviour. A warning that simultaneously includes a pay cut or other sanctions may also be invalid – the warning must not contain any additional punishment alongside the warning itself.
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Warning Letter Check: Is your warning letter open to challenge?
Please answer a few short questions about the warning letter you have received. The assessment will show you whether there are any common mistakes and how you should respond.
How to respond: your options following a formal warning
Anyone who receives a warning letter should not act rashly – but should not sit idly by either. Depending on the situation, there are various strategies that employees in Augsburg should be aware of.
Counterstatement regarding the personnel file
Under Section 83(2) of the Works Constitution Act (BetrVG), every employee has the right to draft a written counterstatement and have it added to their personnel file. The counterstatement is kept on file alongside the written warning. There is no deadline for submitting the counterstatement – it may still be submitted weeks or months after the written warning. The counterstatement should be factual, precise and relate to the specific allegations.
Removal of the warning letter from the personnel file
If the written warning is factually incorrect, disproportionate or contains procedural errors, you are entitled to have it removed from your personnel file. You can assert this right with your employer or, if necessary, enforce it through the Augsburg Labour Court. Removal may also be requested even after a long period without further misconduct – the Federal Labour Court (BAG) generally considers warnings to be obsolete after two to three years, although there is no fixed time limit.
Warning letters and dismissal – the connection
In the case of dismissal for misconduct, a written warning is a key prerequisite for the validity of the dismissal. Before proceeding with a formal dismissal for misconduct, the employer must, as a rule, have issued at least one relevant written warning. ‘Relevant’ means that the written warning must relate to misconduct of the same nature as the subsequent grounds for dismissal.
When is it possible to terminate an employment contract without first issuing a warning?
In cases of particularly serious breaches of duty, the employer may, in exceptional circumstances, terminate the employment contract without first issuing a written warning. This applies, for example, to theft, fraud, physical assault, serious insults or persistent refusal to work. In such cases, a written warning is not required because the employee could not reasonably have expected their conduct to be tolerated. Here too, our specialist solicitors in Augsburg will assess whether the necessary conditions are actually met.
Multiple warnings – diminishing the warning effect
If an employer issues repeated warnings for the same misconduct without terminating the employment contract, the warning may lose its effect. An employee who has been warned three times for arriving late but has never faced any consequences may reasonably assume that the employer tolerates their behaviour. In such a case, the employer must issue a further valid warning before they can dismiss the employee. This argument can be decisive in an action for unfair dismissal.
Frequently asked questions about formal warnings in employment law
Further information on employment law
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This information does not constitute legal advice in individual cases.
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