Written warnings at work: What they are and what to do if you receive one

Receiving a written warning at work can make you feel understandably unsettled. In this article, Carina Senf from Rotwang Law explains what exactly a written warning or formal warning is, and what you should do if you receive one. 

Receiving a warning letter from your employer can raise a lot of questions. What does this mean in concrete terms? Do you have to defend yourself directly against this? Who can you contact if you want to dispute the allegations? Here’s an overview of the legal background of written warnings, and some advice on what to do if you receive one. 

What exactly is a warning letter?

With a written warning, the employer is warning the employee of breaches of duty arising from the employment relationship. They are expressing that they do not agree with the employee's conduct and consider it to be a breach of contract. The employee is therefore forewarned. Formal warnings are usually included in the employee’s personnel file and kept there. 

The employment contract regulates the mutual obligations of the employee and the employer. In addition to the main performance obligations (the employee’s obligation to perform at work, for example, and the employer’s obligation to pay their salary), the employment relationship is characterised by many so-called secondary obligations for both parties. 

For example, employers have a duty of care towards their employees and, simply put, must pay attention to their wellbeing. Employees, on the other hand, must be diligent in their work, avoid causing damage to the company, and comply with the employer's instructions. 

If the employee violates one of their obligations, the employer can issue a warning for this behaviour and, if necessary, dismiss them in the event of a recurrence. The warning letter is therefore often the beginning of the end and fulfils an important function in the employer preparing to dismiss the employee. 

Under which circumstances can the employer issue a written warning?

According to § 106 GewO, the employer has the right to issue directives. They may therefore specify the exact structure of the obligations under the employment contract. The employee must comply with these instructions. If they fail to do so, they may be warned. 

However, this is not always true. Of course, only those instructions that are permissible are to be followed. This is where the greatest potential for disputes lies when a warning has been issued. Often, the warning contains allegations that the employee denies. This can refer both to the presentation of the facts ("It never happened that way!") and to the parties' different understandings of the extent to which the alleged conduct can be seen as a breach of duty ("Yes, but that's not so bad!").

If the parties disagree as to what actually happened, the employer bears the burden of proof for their version of events. In such cases, the employee should therefore demand appropriate evidence of the alleged misconduct and check whether they can refute it with their own evidence, which could include records or even witnesses. 

However, the parties often argue about whether the employee's conduct was justified or not. The employee may be entitled to fail to carry out instructions deemed inadmissible. For example, work instructions must not be arbitrary, and must always take into account the employee’s interests. Balance must be achieved between the interests of the employer (organisation of the business, economic efficiency, industrial peace, and so on), and those of the employee. 

For example, the instruction to change working hours without good reason may constitute an inadmissible work instruction for a single father with an underage child if it causes him problems in caring for his child. He would have a potentially legitimate reason not to follow that instruction. Accordingly, a warning would most likely be ineffective. 

Individual work instructions are also sometimes used to try to make the unpopular employee particularly "uncomfortable", so that they may leave the company voluntarily. If the employee does not follow these instructions, they are often immediately warned. Such warnings can usually be mitigated by showing that they constitute unjustified "special treatment" to the detriment of the employee. 

It’s also worth noting that simple oversights can result in a written warning. Of course, not every minor violation or moment of carelessness would prompt a warning, but if a small mistake has serious consequences and could have been avoided, the employer might see the warning letter as an effective “slap on the wrist”. 

How does the warning have to be issued? 

In all cases, the warning must be carefully timed in relation to the alleged conduct. As a rule of thumb, the employer should issue the warning within 14 days of receiving knowledge of the relevant facts. 

Theoretically, they can issue the warning verbally, but for evidentiary reasons the vast majority of warnings are issued by letter or email. Likewise, a warning must always contain a reference to the fact that in the event of repetition, there may be consequences under employment law, up to and including dismissal.  

When do I need to act after receiving a formal warning?

Anyone who has received a warning letter does not have to take immediate action against it. It is also possible to challenge the warnings in the context of subsequent dismissal protection proceedings. However, if you wish to contest the warning, it’s best to take action quickly, as contractual exclusion periods may apply. 

If you are planning on applying for a new job, it’s a good idea to contest the warning straight away and ask the employer to remove it from your personnel file. This is because the employer is entitled to provide information to potential new employers about any facts and circumstances that are directly related to the work. 

Under certain circumstances, this can lead to them giving your potential new employer the wrong impression of you. A warning in the personnel file can also justify a bad job reference. In this case, you have two fronts on which you have to fight if the reference does not meet your expectations – the warning letter and the employment reference. 

Our recommendation is therefore to take action upon receipt of a warning. It also demonstrates strength to defend oneself against a warning. In this way, you can put a stop to further possible warnings, up to and including termination, if you show that you have sought legal support. Depending on the situation, the receipt of a warning letter can also initiate negotiations on the termination of the employment relationship with severance payments. The most important thing is to stay calm and get support. 

If you have received a written warning at work and want to clarify your position, seek legal advice as soon as possible. The team at Rotwang Law can support you in the process of contesting your warning or help you begin negotiating a termination and severance payments.