What is a warning letter in German labour law?

In labour law, a warning letter (Abmahnung) is a formal reprimand in which one contracting party (typically the employer) accuses another contracting party (the employee) of a specific breach of duty. The employee is thereby requested to refrain from the misconduct in future in order to avert a possible dismissal. It serves to officially record contractual breaches of duty and to give the warned contractual partner the opportunity to change their behaviour.

The Essentials of an Effective Warning Letter: What Case Law Requires

According to case law, three conditions must be met for a warning letter to be effective:

Precise description of the misconduct: The behaviour being warned must be described precisely, including the date and time of the breach of duty. Vague accusations or generalised references are not sufficient.

Clear labelling as a breach of contract: The breach of duty must be clearly named and the person concerned must be explicitly requested not to repeat the offending behaviour.

Reference to the risk of dismissal in the event of repetition: The warning must make it clear that the employment relationship may be terminated in the event of repeated offences.

A warning is therefore much more than a simple reprimand. It is a serious legal instrument intended to warn the employee and give him or her a chance to improve before further measures such as dismissal are considered.

What is the function of a warning letter?

In employment law, a warning serves as an instrument for employers to reprimand an employee for non-contractual behaviour and to remind them to change their behaviour. Its main functions include

Reprimand function: The employee is clearly made aware of their misconduct. This is usually done by giving a detailed description of the behaviour in breach of duty.

Information function: At the same time, the employee is shown what behaviour is expected of them in future in order to avoid such misconduct in the future.

Warning function: The warning letter also contains a warning that repeated breaches of contractual obligations may result in termination of employment.

A warning in itself does not directly affect the existence of the employment relationship and is therefore a more moderate means of reacting to breaches of contract by the employee than dismissal. Normally, a warning is a necessary preliminary stage before a behavioural dismissal can become legally effective.

However, by issuing a warning, the employer “exhausts” its right to terminate the contract due to this specific behaviour – unless new, similar violations occur. The employee is thus given a chance to improve his or her behaviour (probationary opportunity).

Typical reasons for a warning

The employer has the right to issue a warning if the employee behaves in breach of contract, i.e. if an obligation under the employment contract is violated. These breaches of duty can vary greatly and relate to different aspects of the employment relationship.

Reasons for a warning may include:

• Lateness: Unexcused or repeated lateness.
• Bullying: Damage to the working atmosphere through humiliation, harassment or marginalisation of colleagues.
• Deliberate poor performance: Deliberately poor work performance.
• Insults: Denigration of customers, colleagues or superiors.
• Refusal to work: Failure to fulfil work tasks without a valid reason.
• Taking sick leave: feigning illness in order to avoid work.
• Unauthorised leave: Taking leave without the employer’s consent.
• Prohibited secondary employment: Performing activities that are contractually prohibited or cause conflicts of interest.
• Private internet use: Excessive use of the internet for private purposes during working hours.
• Alcohol or drug consumption: Consumption of these substances with an impact on work performance or safety in the workplace.
• Betrayal of business secrets: Disclosure of confidential information without authorisation.
• Data protection offences: Failure to comply with data protection regulations when handling personal data.

However, warnings are not permissible for every type of behaviour:

• Warnings due to illness: if an employee is absent due to illness, this circumstance may not be penalised with a warning. This is because health is beyond the employee’s control.
• Work obligations that do not exist: If the employer issues an instruction that goes beyond the contractual agreements and the employee refuses it, no warning can be issued for this.
• Unproven breaches of duty: If the breach of duty is an unsubstantiated allegation, there is no basis for a warning.
• Disproportionality: Minor cases that are not serious in themselves may not form the basis of a warning. Exception: If the cases occur frequently and show a pattern of breaches of duty.

In general, each case must be considered individually and it should be checked whether there really is an offence worthy of a warning. If in doubt, employees should seek legal advice in order to correctly assess their situation and respond appropriately.

Requirements for an effective warning letter

A warning is only effective if it fulfils certain requirements:

• Behaviour in breach of contract: The misconduct for which a warning is issued must constitute a breach of contract. This includes misconduct that the employee can influence deliberately, such as disregarding work instructions or unauthorised absence from the workplace. On the other hand, absences due to illness do not qualify for a warning, as they cannot be deliberately controlled.
• Precise wording: The content of the warning must be such that it fulfils its functions of reprimand, notice and warning. This means that the criticised behaviour must be described clearly and in detail, stating the time and place and any persons involved. In addition, the request for behaviour in accordance with the contract must be clear, as well as the instructions for the expected future behaviour. It must also be explicitly stated that there is a risk of dismissal in the event of repeated breaches of duty.
• Proportionality: The warning issued must be appropriate to the degree of misconduct. This means that it should only be issued for serious breaches of duty. In the case of minor offences, milder measures such as a warning should be considered. A warning for minor misconduct may be inappropriate and is not permissible according to a ruling by the Federal Labour Court (BAG of 30 May 1996, 6 AZR 537/95).

If these conditions are not met, the effectiveness of the warning may be called into question, which can have detrimental consequences for the person issuing the warning, particularly in labour court proceedings.

Options for action after a warning letter

If you have received a warning letter as an employee, there are various ways to respond. It is important to act in a level-headed and considered manner. Here are a few approaches:

1. Seek dialogue: It is advisable to first seek a direct dialogue with your line manager or the HR department. In this conversation, you can explain your point of view and clarify any misunderstandings. If there is a works or staff council, you should contact them as they can provide support and mediate.
2. Writing a counterstatement: If a discussion does not clarify the situation, you have the right to write a counterstatement, which will then be noted in your personnel file. Here you can state your perspective and possible reasons for exoneration, which could later play a role in legal disputes.
3. Consider taking legal action (complaint): You can take legal action against the warning letter and demand that it be removed from your personnel file if it is unjustified or contains formal or substantive errors. Ideally, you should consult a lawyer specialising in employment law.
4. Accept the warning: If the misconduct has been clearly and justifiably reprimanded, it may be appropriate to accept the reprimand. It is then important to learn from the misconduct and avoid repeating it.
5. Preparation for legal action: In the event of a subsequent dismissal, you have three weeks to file an action for unfair dismissal. In order to be well prepared, it is advisable to already have legal expenses insurance or to be a member of a trade union that offers legal support in such cases.

Who can issue a warning letter?

A warning letter can mainly be issued by the employer, but employees also have the right to issue a warning letter if their employer breaches their contractual obligations.

A warning may be necessary for employees if they wish to respond to breaches of duty by their employer, such as significant salary arrears. Before employees resort to more drastic measures such as extraordinary termination without notice and possibly claim damages in accordance with Section 628 BGB, they should give the employer the opportunity to adjust their behaviour accordingly by means of a warning and thus avoid termination.

On the employer’s side, not only persons who are authorised to issue a warning are entitled to do so, but in principle all superiors who have authority to issue instructions to the employee to be warned.