The labour law warning

The instrument of the warning letter is used in various forms in many areas of law. Warnings can be issued to tenants who do not adhere to the tenancy agreement, to entrepreneurs who advertise unfairly, to competitors and, last but not least, to employees from their employers. All types of warnings from the different legal fields have one thing in common: the warning is always about pointing out misconduct to the person being warned. However, experience shows that most employers do not succeed in formulating an effective labour law warning letter, which is the subject of this article. This is because an effective labour law warning must fulfil certain requirements.

Why are warnings issued at all?

By issuing a warning, the employer makes the employee aware of misconduct. At the same time, the warning is regularly a prerequisite for the effectiveness of a behaviour-related dismissal. This is because a dismissal may generally only be issued as a last resort („ultima ration“) if no more lenient means can be considered. One such milder measure is a warning. If the employee has not committed a gross offence (e.g. criminal offence such as theft or bodily harm to the detriment of the employer), the employer must issue a warning before issuing a dismissal with or without notice.

What do employers need to consider when formulating a warning letter?

A warning is only effective if it fulfils the following requirements:

The formal requirements are quite simple to fulfil. This is because a warning can be issued not only in writing, but also in text form, for example by email or WhatsApp, or even verbally. It is only important that the addressee of the warning is clearly identifiable and that the person issuing the warning is also authorised to do so (e.g. the managing director with sole power of representation). Even if a warning can be issued verbally, a written warning is always recommended for reasons of documentation and proof. The delivery of the warning letter should also be documented.

Warnings often prove to be ineffective because the content requirements are not met. PREREQUISITE

We recommend that employers formulate warning letters as briefly and precisely as possible. Long texts quickly lead to errors and inaccuracies with the result that the accusation is no longer sufficiently clear and the warning is therefore ineffective. Before formulating the warning, think about whether the employee's behaviour is actually just one offence or possibly several minor ones. If you are unsure, it is better to issue several warnings, only one of which may stand up to judicial review, than one comprehensive warning that is ineffective due to a lack of precision.

How should an employee react to a warning letter?

Even employees who have been advised by a lawyer often react incorrectly to a warning letter. This is because a lawsuit or an out-of-court request to remove the warning from the personnel file is not always the best option. The reason for this is that the warning serves as preparation for a future dismissal. Here is an example:

An employer we represent recently issued a warning letter. It did not adhere to our recommendation to describe the accusation as briefly and precisely as possible, but instead - which happens very often - described various incidents in detail in three paragraphs and concluded succinctly with the sentence: „This behaviour constitutes a breach of your work performance obligation. We hereby issue you with a warning for this breach of duty.“ The employee now has several options for responding. He can, for example, not react at all, submit a counterstatement to the warning and have it placed in the personnel file or, alternatively, demand that the warning be removed from the personnel file:

1. If the employer does not react at all or only submits a brief counterstatement, the following happens: The ineffective warning remains in the personnel file. If a similar offence occurs again, the employer will dismiss the employee. The labour court will examine the facts of the case and determine that the warning was ineffective, with the consequence that the dismissal could not be issued as a „last resort“ (see above). The dismissal is therefore invalid and the employee wins the dismissal protection case.
2. In our example case, however, the employee requested the removal of the warning from the personnel file via a specialist labour law attorney. The following then happened: We then advised the client to remove the warning from the personnel file and issue new - more precise - warnings. If the employee now repeats his misconduct in future, he must expect to be dismissed. As the warning(s) are now effective, the labour court will determine that the dismissal was indeed the last resort and therefore effective. In this case, the employer wins the dismissal protection case.

In the example case, the employee would therefore have been better off not defending himself against the warning or only making a brief counterstatement.