What is a written warning (Abmahnung)?

A warning is a serious matter and its potential legal consequences should not be underestimated: Broadly speaking (and not specifically regarding the university), employers sometimes use a written warning to prepare for dismissal on the grounds of an employee’s (mis)conduct.

The employer objects to an employee’s conduct that is in breach of contract, indicating that in the event of a repetition, the content or continuance of the employment relationship is at risk. In addition, the employer may have other motivations, ranging from a well intentioned “shot across the bow” to a calculated attack against an employee in bad standing.

There is no explicit legal basis for written warnings, but they are based on a long history of case law in the field of labor law. According to § 323 of the German Civil Code (BGB), the opportunity to remedy a problem must be granted before a contract may be terminated. The principle of proportionality requires that employees be given the opportunity to change their controllable conduct that is in breach of contract. Because a dismissal is always the last resort, a minimum of one written warning is usually required beforehand.

Objection Function

A warning is effective if a clear objection to an act of misconduct is made. The employer must specifically identify the objectionable conduct. Generic phrases such as “inadequate work performance” are not sufficient. There must be a clear breach of the employment contract, e.g., going shopping during working hours.

Notice Function

The notice function highlights that certain actions or a particular conduct are considered to be in breach of contract. The employer usually phrases this as: “We are no longer prepared to accept such a breach of duty” (“Wir sind nicht bereit, eine derartige Pflichtverletzung länger hinzunehmen”). This kind of notice also always serves to influence the controllable and thus changeable conduct of the employees.

Warning Function

The written warning must have a warning function and point out the consequences under labor law, should the conduct in breach of contract persist. It must be made clear that in case of recurrence, certain sanctions will apply. The wording could read as follows: “In case of recurrence, we will take appropriate steps. In the event of another breach of duty of this kind, you must expect consequences under labor law”. In the worst case, an employee is threatened with dismissal. Other legal consequences may include transfer to another position or claims for damages.

If the legal consequences for the employees are not clear from the employer’s wording, however, the respective legal consequences cannot be enforced.

When is a Written Warning Superfluous?

As an exception, a written warning is not required prior to a dismissal based on an employee’s conduct if the employee is unwilling and unable to conduct themselves in accordance with the contract or if the conditions for a dismissal without notice are met.

Examples of Grounds for a Written Warning:

Unexcused absences, being unpunctual when beginning or ending work, violations of accident prevention regulations, waste of company resources, sexual harassment in the workplace, delayed notification of sick leave.

If the employer has issued a written warning, they may not subsequently dismiss the employee based on these admonished grounds.

Warning: Verbal or in Writing?

A warning can be given verbally or in writing. In order to be able to provide evidence later on, it is preferable for an employer to use the written form, since the burden of proof lies with the employer. The content is essential for a written warning, not the title or the heading. The objection, notice and warning functions must be in evidence. A written warning and the accompanying response are generally added to the personnel file.

The length of time a written warning remains in the personnel file is not prescribed by law. Depending on the severity of the offense, the written warning can be deleted after as little as a year or considerably later.

“Hearing” (Anhörung) – What Should I Do?

This is how it works in practice at the university: Employees are given the opportunity to comment on the allegations made within a specified period of time as part of a hearing procedure by human resources. At the same time, they can mark on a form that the staff council should be involved.

Depending on the severity of the allegations made, the employee should seek legal advice before drafting the written statement (Stellungnahme). Union members can seek legal protection from their union.

The Role of the Staff Council

The Landespersonalvertretungsgesetz (state staff representation act) regulates the staff council's right to consultation in the case of written warnings for employees in § 81 (2), Sentence 2.

If the employee has ticked the box on the form sent to them, the staff council will be notified by human resources that they intend to issue a written warning. In this case, the staff council can invoke its right to information and hear the parties involved on the facts of the matter. If the staff council considers the measure to be unjustified, it rejects it in a written statement. This statement is particularly important for the individual employee in the event of a subsequent dismissal based on an employee’s conduct and a lawsuit in a labor court.

Human resources then decides whether to abandon the measure altogether, to amend it into an admonition (Ermahnung) with no legal consequences for the individual, or to adhere to the written warning despite the statement. 

Updated: 03/2021