Warning - Abmahnung
October 12, 2020
The warning in labour law constitutes a factual declaration by the employer, by which he makes it clear to the employee that any behaviour of the employee which is in breach of the contract will no longer be tolerated. At the same time, legal consequences are threatened for the future unless the disapproved behaviour won‘t change and appears again. A warning notice is thus given if the employer shows the employee sufficiently clear any deficiencies in performance and threatens to take legal action in the event of recurrence. In the majority of cases the promised consequence is a termination of the employment contract. Insofar, the warning notice contains a alter/ forewarning and the announcement of consequences for further misconduct.
Why is a warning notice given?
With a warning notice, the employer points out misconduct (informative function) and at the same urges for future conduct in accordance with the contract and obligations (warning function). In most cases, the warning notice serves as a preparation for the termination. But other consequences are also conceivable. Overall, this component should be considered as a warning or a threat . Last but not least, the employer wants to document and record a relevant event with the warning notice in order to be able to follow up on it in the future (documentation function). In the vast majority of cases, terminations for conduct-related reasons are invalid without a prior warning. On the one hand, the warning represents a sufficient basis for the employer to make a prognosis for the future, since it can be assumed that the employee, even though given a warning, will continue with the accused behavior in the future . On the other hand, the warning can also provide a final warning for the employee, as the employee could also react with a change of his or her behaviour, after being informed of the consequences of his or her actions.
Only in individual cases of particularly serious breaches of duty or if a change in behaviour is not to be expected in the future a warning is not necessary before giving notice of termination.
How is the warning notice issued?
The warning notice is not bound to a specific form, so it can be declared not only in writing but also orally, although it is advisable to declare the warning notice in writing for evidential purposes. Even an ineffective termination, e.g.no warning was issued prior to the termination, can be considered as a sufficient warning, because the employee was warned and the consequences were pointed out. On the employer's side, warnings can be issued by any person who is authorized to give instructions to the employee. A warning cannot be issued for every minor detail. Since the warning is to be understood as a last warning before an otherwise unavoidable termination, only behaviour relevant to a termination can be the content of a warning.
What to do if you receive a warning?
You are an employee and have received a warning? Then you are probably wondering whether you should do something about the warning or wait and see what the employer's next actions are. First of all, you are free to formulate a reply and send it to your employer. However, this will probably not bring the desired success, because the warning notice will remain in place. You can also combine this with a request that the warning notice shall be removed from your personal file. A cancellation claim can exist during the employment relationship as well as after its termination. If the employer does not comply with the request, you have the possibility to take the warning notice to a labour court and to sue for the withdrawal and removal of the warning notice from your personal file. There are several reasons for this. A common reason is that warnings are based on incorrect facts. Unfortunately, it also happens that employers issue warnings for minor matters that are not eligible for a warning. Likewise, it is frequently found in practice that warnings are not issued promptly. This is also justiciable. In any case, it must be examined whether legal action makes sense or whether it makes more strategic sense to wait. Have you received a warning notice and you are not sure whether you should take action? Make an appointment for an initial consultation.