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Sometimes the same rules apply in sports and in the office.
If you understand a termination as a dismissal, then the warning is a yellow card.
Unlike in football, those affected do not have to accept the sanction.
It can be worth challenging the boss's decision.
Because the legislator strictly stipulates what may and may not be warned.
The general rule is: Anything that constitutes a “moderate breach of duty” can be warned, explains Peter Schüren, Professor of Labor Law at the University of Münster.
This includes, for example, being late or not completing tasks.
Fighting, sexual harassment or theft are no longer considered a medium breach of duty and can lead directly to termination without notice.
Advance warning is no longer required in these cases, says Schüren.
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Alexander Bredereck, specialist lawyer for labor law, fundamentally distinguishes between two cases: "If an employee repeatedly makes a mistake, a warning can be seen as an impetus - 'You, just do it differently!'"
According to Bredereck, the second variant, in which a notice of termination is actually prepared, is much more dangerous.
“If you come to work 30 minutes late, you cannot be dismissed yet - but if you have already been warned several times for this reason, you certainly can," said Bredereck.
Oral or written warning: what applies formally
It does not matter whether a warning is sent by email, letter or verbally to the boss's office.
It is effective in any case.
Formally, a warning usually comprises three elements: First, the actual misconduct is documented.
The employer then shows the correct behavior instead, which makes the specific breach of duty clear.
In the end, he must threaten to terminate the contract in the event of repetition.
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If an employer wants to use a warning later in a dismissal process in court, however, it should be in writing, explains Schüren.
“Then it becomes very clear that it is meant seriously.
It must be stated what behavior should be avoided and what happens if the employee does it anyway. "
If the warning is only given orally, it will not be valid later in court.
According to lawyer Bredereck, an oral warning can also be useful from an occupational psychological point of view.
“Something like that is usually impressive,” he says.
Sign a warning: You should pay attention to this
Not every case ends with legal consequences.
Much more important is first of all the question of how employees should best behave when they are warned.
Above all, it is important to keep calm.
For example, an employee should not immediately sign a warning if it is in writing.
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Labor lawyer Schüren explains the reason: “This can also be understood to mean that the employee admits the wrongdoing.
If the employee thinks he has not violated his duties, he should clarify this immediately.
The employer has to listen to him. "
The right reaction always depends on the individual case, says lawyer Bredereck.
If the boss's allegations are formally justified - but incorrectly in terms of content, the employee can write a reply.
Everything about termination
An example: An employee arrives at the company on time for the start of work.
However, he first goes to the post office because the boss asked him to pick up an urgent letter there.
Only then does the employee log into the office using the time clock and is therefore officially half an hour late.
The manager then cautions the employee.
In a reply, the employee can summarize the reasons for this lack of punctuality.
The warning remains in his personal file.
The employee may, however, enclose his reply.
As a result, the misconduct is in a larger context, the warning may appear less drastic.
A warning may be removed from the personnel file
Depending on the severity of the violation, employees also have the right to have the warning removed from the personnel file after a certain amount of time.
From experience, that is one to two years that you have to wait, says Bredereck.
In the event of theft, however, the employer may keep the document in the personnel file for five years or more.
If nothing is at stake and the employer only uses the warning to vent his anger over wrongdoing, time will solve the problem.
"If you are threatened with dismissal, you should always consult a lawyer," advises Bredereck.
In such cases, the exact formulation of the reply can be decisive in order not to fail in the event of a possible termination process.
Sometimes the impending resignation comes in handy for employees.
"If an employee wants to end an employment relationship anyway, a lawsuit against a warning can increase the pressure on the boiler in the employment relationship again and thus the chance of receiving a severance payment," said Bredereck.
In such cases, you can literally capitalize on a fresh start.
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The chances of success of a lawsuit depend on various factors.
Is the warning justified?
How big is the breach of duty?
How long have you been working in the company?
How harmonious was the previous employment relationship?
Warning letters are often ineffective
Formal errors often play into the hands of employees.
The probability of holding a formally ineffective document in your hands in the event of a warning is astonishingly high.
“Often such warning letters are too vague and sometimes wrong in terms of content,” says Bredereck.
The employer must precisely document what his employee has done wrong.
This includes on the one hand the place, date and time of the misconduct.
On the other hand, the action must be recorded with sufficient precision.
If you accuse an employee of being “not polite enough” to customers or “not punctual enough” in the office, the warning remains too vague.
By precisely showing the duty to work, the actual misconduct and a clear warning of the consequences for the employee, an employer correctly writes down his warning.
If he formulates only one of these points unclearly, the warning is ineffective.
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Employees should not sue too quickly, however.
Because in the long run they poison the working atmosphere.
This increases the risk of a renewed warning with subsequent termination.
It is therefore strategically more intelligent to let the grass grow over the cause.
If the judge determines the ineffectiveness of the warning in a later dismissal process, it will be much more difficult for the employer to prove the employee's misconduct after one or two years, according to Bredereck.
The employee can stay.
An exception are young professionals during their probationary period. Particular caution is required here, as there is no protection against dismissal for them.
According to Bredereck, the employer can still issue a warning before dismissing the contract.
But he is by no means obliged to do so.
In addition, this usually does not indicate an employment relationship with a special future.
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This article was first published in December 2019.