Representation after warning

With a warning, the employer (in practice) reprimands the employee for a specific breach of the employment contract.

In this context, the warning fulfills three functions:

• Hint function:

The function of the warning is therefore not repressive, but preventive. The primary purpose is to make the employee aware of his or her misconduct and to induce him or her to cease and desist.

• Warning and threat function:

By threatening the employee with consequences under labor law (termination), it is made clear to the employee that a continued or repeated violation of the employment contract obligations specifically reprimanded in the warning will endanger the existence of the employment relationship.

• Documentation function:

In principle, the warning is not subject to any formal requirements. Nevertheless, it is usually issued in writing in order to make the issued warning verifiable. In doing so, it is usually filed in the personnel file.

In contrast, one speaks of a warning, one of the conditions for a warning is not met.

What are the consequences of a warning?

The warning does not have any direct consequences for the existing employment relationship itself. Only in the event of repetition or if similar actions are carried out does the employee have to fear consequences.

As a milder means of termination, the warning is more or less the precursor to termination. Should the employee engage in further misconduct, protection against dismissal in the event of ordinary termination is only strong in a weakened form.

An extraordinary termination for behavioral reasons, on the other hand, is still only possible in the event of a serious breach of duty by the employee, which the employer cannot be expected to accept until the expiry of the ordinary notice period.

How should an employee behave in the event of a warning?

Receiving a warning is an emotional issue, even more so if the employee feels he or she has been treated unfairly. Spontaneous statements made out of emotion should be avoided. The reflex of wanting to comment on the offending behavior should also be resisted. Rather, after careful consideration, it may make sense not to respond to the warning at all.

In some circumstances, the employer may wish to have the receipt of the warning acknowledged and have the employee sign to confirm receipt. Here, the employee should take care that he does not confirm the reason for the warning by his statements.

Can the employee also give the employer a warning?

Not only the employer is entitled to issue a warning, but also the employee. The employment contract is a mutually binding contract. In this, the employee is a contractual partner and can accordingly enforce the contractual obligations of the employer by means of a warning. Here, the requirements of a warning must be observed.

For example, the lack of payment of wages is a reason for the employer’s warning.

What can be done against a warning?

• Letter through a lawyer

First of all, the lawyer can work towards the removal of the warning from the personnel file. The warning may be ineffective for various reasons. Often the behavior is not suitable to justify a warning. Also, if applicable, the employer has not precisely circumscribed the conduct so that the employee can remedy the breach of duty. Ultimately, the disproportionality of the warning can also be shown in the individual case. Consultation in individual cases is required.

• Involve works council

In addition – if available – the works council, as the employee’s protective body, can be consulted in the form of a complaint to seek redress. The works council examines this complaint and, in the event of an unjustified warning, requests the employer to remedy the situation. In the event of a lack of insight on the part of the employer, the matter may, if necessary, be referred to a conciliation board. The employer is obliged to inform about the result of the complaint.

• Legal action

It is also possible to take legal action against an unjustified warning, for example to claim removal from the personnel file. However, this action may cause lasting disruption to the employment relationship, even if the warning was obviously unjustified.

Therefore, a lawsuit should be well-considered.

• Counterstatement

It may therefore make more sense, depending on the circumstances, to draft a counterstatement to be placed in the personnel file. The employee is entitled to this.

It is important that such a counterstatement is well founded

• Toleration of the warning

In individual cases, it may also make sense not to respond to the warning. This is the case, for example, if the behavior will not be repeated or the warning is already obviously invalid for formal reasons.

Finally, industrial peace can be maintained if the conflict is settled with the warning.

Summary

The warning reprimands a specific misconduct and is a prerequisite for a termination based on conduct. The warning itself does not have any immediate consequences for the employee. Nevertheless, it makes sense to seek advice and defend yourself against an unjustified warning. In doing so, it must be carefully weighed up whether and which legal steps are necessary.