Key Takeaways
- A legally valid written warning must specifically identify the breach of duty, demand behavioral change, and threaten employment law consequences
- Formal errors or insufficient factual presentation can render the warning ineffective
- The proportionality between the breach of duty and the warning must be maintained
Introduction: The Importance of Written Warnings in German Employment Law
The written warning (Abmahnung) is one of the most important instruments in German employment law. It serves as a warning tool before a conduct-related dismissal and gives the employee the opportunity to correct their behavior. At the same time, it creates the legal prerequisites for employers for a later dismissal in case of repeated breaches of duty.
The correct design of a warning is crucial for its effectiveness. Faulty warnings can not only be ineffective but also have legal consequences for the employer. In an increasingly complex working world with diverse forms of employment and digital workplaces, the proper application of warning law becomes even more important.
Written warnings are particularly relevant for international employees holding a Blue Card or other work permits, as employment-related issues can have visa and residence implications. Understanding German employment law requirements is essential for both employers and international workers.
Legal Foundations of Written Warnings
Definition and Purpose of Written Warnings
A written warning is a unilateral declaration that requires receipt by the employee. It serves three essential functions: documentation, warning, and prevention. The warning is not explicitly regulated by law but has been developed through case law.
The purpose of the warning is to make it clear to the employee that their behavior violates the employment contract and that dismissal threatens if repeated. It gives the employee the chance to correct their behavior and serves the employer as proof that milder means were exhausted before dismissal.
For international employees, warnings take on additional significance as they may affect residence status and future employment opportunities in Germany.
Legal Classification and Principles
Although the warning is not defined by law, its principles derive from various legal sources. The German Civil Code (BGB) contains general regulations on breaches of duty and damages in § 280 ff. The warning itself is not explicitly regulated in employment law but was developed in its current form essentially through case law – particularly by the Federal Labor Court (Bundesarbeitsgericht). Only in the context of long-term contractual relationships is a warning now also mentioned in § 314 Para. 2 BGB as a standard example for termination for good cause. According to established case law of the Federal Labor Court, a warning is generally a prerequisite for conduct-related dismissal. However, exceptions exist for such serious breaches of duty that behavioral change cannot be seriously expected even after a warning or the relationship of trust is permanently destroyed.
The principle of proportionality runs through all warning law. The warning must be appropriate in relation to the breach of duty committed. For minor violations, an initial conversation may suffice.
The timely issuance of the warning is also important. Although there is no legal deadline, waiting too long can lead to the accusation of waiver of rights.
Prerequisites for a Valid Written Warning
Objective Facts: The Breach of Duty
A basic prerequisite for any warning is an objective violation of contractual duties. These can arise from the employment contract itself, works agreements, collective agreements, or legal provisions. Classic examples include violations of working time regulations, unexcused absence, unpunctuality, inadequate work performance, or violations of operational instructions.
The breach of duty must be concrete and provable. Vague accusations or general dissatisfaction are not sufficient. The facts must be presented so precisely that the employee knows exactly which behavior is being criticized.
For repeated similar violations, the first breach of duty can already be subject to warning. For serious violations, extraordinary dismissal without prior warning may sometimes be possible.
Subjective Facts: Fault and Reproachability
In addition to the objective breach of duty, the behavior must be reproachable to the employee. Fault in the form of intent or negligence is required. Warnings are excluded for illness-related absences or other circumstances beyond the employee’s control.
Reproachability may be excluded if the employee could not act differently due to external circumstances or if they could not have known about the wrongfulness of the duty. Even for first-time minor violations, issuing a warning can be disproportionate.
The employer must be able to prove that the employee is at fault. Mere assumptions or indications are not sufficient. Comprehensive investigation of the facts is therefore essential before issuing a warning.
Proportionality and Appropriateness
The principle of proportionality pervades all warning law. The warning must be in reasonable proportion to the breach of duty committed. For minor violations, an initial verbal reprimand may suffice.
The severity of the breach of duty, the impact on the business, the employee’s previous conduct, and the duration of the employment relationship must be considered in the proportionality assessment. A long-term, otherwise blameless employee should be treated differently than an employee who has already attracted attention several times.
Formal Requirements for Written Warnings
Written Form and Documentation
Although not legally required, a warning should generally be issued in writing. The written form serves to secure evidence and clarify to the employee. A verbal warning is legally possible but difficult to prove in case of dispute.
The written warning should be dated and signed by the authorized supervisor or managing director. A copy belongs in the personnel file. Receipt by the employee should be documented, for example through acknowledgment of receipt or registered mail with return receipt.
When handing over the warning, appropriate form should be observed. Public handover in front of other employees can violate personal rights and should be avoided.
Minimum Content Requirements
A valid warning must contain three essential elements: concrete presentation of facts, the reprimand and warning function, and the threat of employment law consequences. If one of these elements is missing, the warning is invalid.
The presentation of facts must be so precise that the employee can clearly identify the criticized behavior. Date, time, place, and persons involved should be mentioned. General accusations like „poor work performance“ or „uncooperative behavior“ are insufficient.
The reprimand function requires a clear assessment of the behavior as contrary to contract. The warning function must make it clear to the employee that employment law measures threaten if repeated. An explicit threat of dismissal is not mandatory. It is sufficient if the employee is made clear that in case of repetition, the danger of employment law measures – up to and including dismissal – exists. For the sake of clarity, the most precise formulation possible is recommended.
Receipt and Timing of the Warning
The receipt of the warning by the employee is crucial for its validity. In case of personal handover, the warning is considered received upon delivery. When sent by mail, receipt must be proven, which is why registered mail with return receipt is recommended.
The warning should be issued promptly after becoming aware of the breach of duty. The warning should be issued promptly after knowledge of the violation. There is no legal deadline, but the warning should be timely. Depending on the individual case – especially for complex situations – a longer period may also be appropriate.
When determining the appropriate period, the circumstances of the individual case must be considered. Complex situations that must first be clarified can justify a longer period. Vacation or sick leave periods of the responsible supervisor may also be considered. Whether the right to warn is forfeited is decided according to the time and circumstance factors. A longer period alone is not sufficient; rather, the employer’s behavior must lead the employee to trust that no warning consequences will follow.
Practical Tips for Formulating Warnings
Factual Presentation: Precision and Objectivity
The presentation of facts is the heart of every warning. It must be so precise and objective that even an outsider can understand the process. Important are the W-questions: Who, what, when, where, why? Emotional evaluations or subjective assessments have no place in the factual presentation.
Concrete examples are better than general accusations. Instead of „You regularly come late,“ it should say: „On January 15, 17, and 19, 2024, you appeared at your workplace 15, 20, and 25 minutes respectively after the agreed work start at 8:00 AM.“
For more complex situations, attachments such as email printouts, time records, or witness statements can support the presentation. Data protection is important here – third-party personal data may only be used to the extent necessary for fact-finding.
Legal Assessment and Warning Function
After the objective presentation of facts comes the legal assessment. Here it is clarified which duties the employee has violated. Reference to specific provisions (employment contract, works agreement, legal requirements) gives the warning more weight.
The warning function must be clearly expressed. The employee must understand that their behavior is evaluated as contrary to contract and can have consequences. Formulations like „We ask you to change your behavior“ or „In case of repetition, you must expect employment law measures“ are helpful.
The threat should be concrete but not excessive. Threatening dismissal for every minor violation, no matter how small, seems untrustworthy and can be disproportionate. For serious violations, however, a concrete threat of dismissal can be appropriate.
Avoiding Common Formal Errors
Common formal errors can endanger the validity of a warning. Incomplete factual presentations, missing date or signature information, or the use of forms without individual adaptation are typical sources of error.
The personal touch is important: standard formulations or templates should always be adapted to the specific case. The employee must be able to recognize that the warning was created specifically for them and their case.
The correct addressee is also crucial. The warning must be issued by a person who is authorized to give instructions. In larger companies, it should be clarified who is authorized to issue warnings.
Employee Rights Regarding Written Warnings
Right to be Heard and Statement
Although not legally required, it is advisable to give the employee an opportunity to comment before issuing a warning. This serves to clarify the facts and can help avoid misunderstandings. A fairly conducted hearing procedure also strengthens the legal security of the warning.
The employee has the right to present their view of things and bring forward exonerating circumstances. These must be included in the assessment of the facts. Even after issuing the warning, the employee can submit a written statement, which must be added to the personnel file.
In companies with works councils, they must be heard before issuing a warning. The works council can provide a statement and possibly mediate. However, its consent is not required for the warning.
Objection and Removal from Personnel File
If the employee considers the warning unjustified, they can object to it. An objection initially has no suspensive effect, but it documents the employee’s legal position. The objection should be reasoned and contain specific objections to the warning.
For justified objections, the employer should withdraw the warning and remove it from the personnel file. This is particularly required when the accusations prove to be incorrect or the warning is invalid for other reasons.
The employee can also take legal action against the warning and demand its removal from the personnel file. However, such procedures are complex and are usually only conducted in serious cases. An out-of-court agreement is often more sensible.
Statute of Limitations and Time Limits
Warnings do not „expire“ in the true sense, but they can lose their effect. According to general opinion, a warning can lose its warning effect after two to three years of proper conduct by the employee and can no longer be used as a basis for dismissal.
The specific duration depends on various factors: the severity of the warned violation, the employee’s further behavior, and the type of new breach of duty. For serious violations, the warning effect can last longer than for minor violations.
After a longer time, employees can demand the removal of old warnings from the personnel file. This is particularly justified when the employee has behaved properly over a longer period and the warning has lost its warning effect.
Checklist for Legally Secure Warnings
Before the Warning:
- Completely clarify and document the facts
- Conduct employee hearing
- Check proportionality
- Inform works council (if present)
- Clarify responsibility for the warning
Content of the Warning:
- Concrete and precise presentation of facts with date, time, and place
- Legal assessment as breach of duty
- Request for behavioral change
- Threat of employment law consequences
- Date and signature of the person authorized to give instructions
After the Warning:
- Document proper delivery
- Include warning in personnel file
- Consider any statement by the employee
- Observe further behavior of the employee
- Allow reasonable time for behavioral change
The legally secure design of a warning requires comprehensive legal knowledge and practical experience. Errors can have far-reaching consequences and endanger both the effectiveness of the warning and later dismissals. Professional advice is therefore advisable in many cases.
In case of uncertainties regarding the legal assessment of a situation or the proper formulation of a warning, employers should seek professional support. This can avoid lengthy and costly legal disputes and contributes to fair and legally secure treatment of employees.
We support international employees and employers with our specialized experience in German employment law, offering consultation in German, English, and Turkish. Our team understands the unique challenges faced by international professionals in Germany and provides tailored legal solutions.
Frequently Asked Questions
Is a verbal warning legally valid?
Yes, in principle, a verbal warning is also legally valid. However, providing evidence in case of dispute is difficult. Therefore, warnings should generally be issued in writing to create legal security and ensure proper documentation.
Must a warning precede every conduct-related dismissal?
Generally, yes. A conduct-related dismissal generally requires a prior warning to give the employee the opportunity to correct their behavior. Exceptions only apply to particularly serious violations where behavioral change cannot be expected or the relationship of trust is irreparably damaged.
Can a warning be used for dismissal after years?
The effect of a warning diminishes over time. The warning function of a warning can lose effectiveness with time. In employment court practice, this period is often about two to three years. However, the assessment of circumstances in the individual case according to Federal Labor Court case law is always decisive. For particularly serious violations, the effect can last longer.
Can multiple warnings "add up" to a dismissal?
Yes, multiple warnings for various violations can together justify a conduct-related dismissal, even if the individual violation would not be relevant for dismissal by itself. The prerequisite is that the warnings are still effective and result in an overall picture of duty-violating behavior.
What happens if a warning is invalid?
An invalid warning cannot be used as a basis for conduct-related dismissal. The employee can demand removal from the personnel file. In case of a later dismissal based on invalid warnings, this is also invalid.
Can I legally defend myself against an unjustified warning?
Yes, you can object to the warning and demand its removal from the personnel file. As a last resort, judicial review is also possible. However, an out-of-court solution is often more sensible and cost-effective.
Are there deadlines for issuing a warning?
There is no legal deadline, but the warning should be issued promptly. Depending on the individual case and complexity of the situation, longer periods may also be appropriate. With longer inactivity, the right to warn can be waived.
Can even minor violations be warned?
In principle, yes, but the principle of proportionality must be observed. For minor violations, a clarifying conversation or verbal reprimand may initially be appropriate. A written warning should correspond to the severity of the violation.
What should be considered for warnings in home office?
The same legal principles apply in home office, but providing evidence is often more difficult. Employers must create clear regulations and be able to carefully document violations. New grounds for warnings can arise from IT security regulations or handling company equipment.
