📝 Warning letters and how you can respond
In brief
A warning letter is a written or oral reprimand for specific misconduct, combined with a notice that consequences under employment law (up to dismissal) will follow if it is repeated. There is no separate law on warnings in employment law; their conditions and effects have been shaped by decades of case law of the Federal Labour Court.
In the case of a dismissal for conduct, case law generally requires that the employer has validly issued at least one warning beforehand – except in the case of particularly serious breaches of duty where it is clear from the outset that the employer could not tolerate them.
Step by step
- Read the warning letter carefullyDoes it name specific conduct (date, incident), or does it remain vague? Only a sufficiently specific warning letter has full effect.
- Document the factsPromptly write down your own recollection of the incident, possible witnesses and your own documents.
- Consider a counterstatementYou can write a counterstatement, which the employer must add to your personnel file on request (§ 83 Abs. 2 BetrVG as an express rule for businesses with a works council; otherwise derived from the general right of personality).
- Consider having it removed from the personnel fileIf the warning letter is factually wrong, disproportionate or no longer relevant, there may be a right to have it removed – if necessary by a claim before the labour court.
Deadlines
- An invalid or disproportionate warning letter does not "use itself up" – if you do not challenge it, you risk it being used later as a preliminary step to dismissal.
- Even if you disagree with the allegation, you should not thoughtlessly "confirm" it in writing – a counterstatement is the safer route compared with informal comments.
- Whether a warning letter was issued "rightfully" is often only clarified in a dismissal protection case in a dispute – a separate claim solely for removal of the warning letter is possible, but not always the fastest route.
- Several warning letters for different, non-comparable breaches of duty do not automatically justify a dismissal; what usually matters is the relevant repetition of the same or comparable misconduct.
In depth · legal basis, figures and practice – for advisers and professionals
Function of the warning letter
According to settled case law of the Federal Labour Court, the warning letter has a notice function and a warning function: it is meant to make the objected conduct clear to the employee (notice function) and to make clear that the continuation of the employment is at risk if it is repeated (warning function). If either function is missing in substance, the warning letter is invalid and cannot have any effect for dismissal purposes.
Formal requirements
A warning letter must describe the facts as specifically as possible (when, what, how), identify the objected conduct as a breach of duty and point unmistakably to possible consequences under employment law if it is repeated. No particular form is prescribed by law; for evidential reasons, warning letters in practice are almost always in writing.
Right to removal
If a warning letter is factually incorrect, disproportionate or has lost its warning function through the passage of time, there may be a right to have it removed from the personnel file, derived from the general right of personality (Art. 2 Abs. 1 in conjunction with Art. 1 Abs. 1 GG) and § 242 BGB. If necessary, the claim is enforced by an action for performance before the labour court.
Relationship to dismissal
In a dismissal for conduct, the labour court regularly examines whether a relevant prior warning was issued and whether it was unsuccessful. In the case of particularly serious breaches of duty (e.g. theft from the employer), a prior warning can exceptionally be dispensed with because it is evident from the outset that the employer would in no way accept such conduct.
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