Warning: What to do and what mistakes to avoid

Forgot your sick note, took an unauthorized smoking break during work hours or insulted your boss during an argument? That can get you into trouble. Depending on the severity of the misconduct, superiors often first give a yellow card before dismissing the employee: a warning. This is intended to show the employee that this is not acceptable and that the employment relationship is at risk if he or she continues to behave in a way that violates the contract.

“Employees do not need to panic if their employer issues them a warning,” says lawyer Simone Schäfer from the law firm HMS Barthelmeß Görzel. The purpose of a warning is not to sanction the employee. Instead, it is intended to prevent further breaches of duty. “It is usually a tactical means of bringing movement into the employment relationship,” says Schäfer. If the warning is justified, those who have been warned should therefore adapt their behavior. If the offense is repeated, they risk dismissal.

But you don’t have to put up with every insult. If an accusation is not true, employees can defend themselves against their warning and write a counterstatement. This is added to the employee’s personnel file along with the warning. If that is not enough, those who have been warned can file a complaint with the labor court and demand that the warning be removed from their personnel file. This is often successful, says lawyer Schäfer: “There are points of attack, because employers can do a lot wrong when issuing a warning.”

#1: Employer gives verbal warning

In principle, superiors are allowed to issue verbal warnings; there are no formal requirements. However, for a warning to be effective, the employee must receive it and be able to acknowledge it. “The burden of proof here lies with the employer,” says Schäfer. “And because it is often difficult to prove that verbal warnings were received later, we always advise companies to issue written warnings.” Even if a superior issues a warning during a staff meeting, for example, they should carefully record it.

#2: Warning comes too late

There is no strict deadline for issuing a warning. Employers can also issue a warning for behavior that employees have already exhibited a while ago. “Nevertheless, superiors should not let too much time pass and accuse them of something that happened a year ago, for example,” explains the expert. If the employer finds out about a violation but does not reprimand it for a long period of time, the employee can trust that the boss will not reopen the same can of worms later.

#3: Facts remain unclear

The behavior being reprimanded must be clearly stated in the warning. This includes describing exactly what happened when, which people were involved and what operational consequences the breach of duty had. If the warning refers to information or incidents that are not explained in more detail, it remains unclear and incomprehensible.

“Employees must be able to recognize where they have behaved incorrectly so that the warning can fulfill its reprimand function,” explains Schäfer. Managers should therefore specify in the warning exactly which contractual obligation, company regulation or individual instruction the employee has violated. Schäfer advises making sure that the relevant rule was known before issuing a warning: “Many requirements are not even in the employment contract and are simply common practice in the company.”

#4: No evidence of wrongdoing

Managers must also be able to prove their accusations. They should therefore document any damage caused and collect evidence of the misconduct. “If the boss accuses an employee of being late, for example, she should be able to prove when the colleague clocked in to the time recording system,” says Schäfer. If a factual allegation turns out to be false, this renders the warning ineffective.

#5: There are no employment law consequences

Of course, a warning must call for behavior that complies with the contract. However, in order for it to really fulfill its warning function, it should also contain the consequences under employment law if the employee makes the same mistake again.

#6: Multiple violations in one warning

If an employee has committed several violations, for example, arrived late and disregarded a work instruction, the employer can also issue a warning for these incidents together. However, this has a lot of potential for error, warns lawyer Schäfer: “All facts presented in a warning must be correct.” Supervisors must describe every misconduct in detail; blanket accusations or slogan-like descriptions do not count.

“The more violations a warning contains, the more likely it is that an accusation is incorrect or is not presented with sufficient clarity,” explains lawyer Schäfer. “This makes the entire warning invalid.” To avoid this risk, Schäfer advises employers to list various violations in several warnings and to issue them at the same time.

#7: Employer issues warnings too often

Some people are incorrigible. If a violation occurs repeatedly, employers usually issue several warnings before terminating the employment. However, there is no prescribed number of warnings.

If, for example, an employee has already received a warning shot but is still regularly late, further warnings may also fall on deaf ears. Attorney Schäfer knows that the warning function of a ‘yellow card’ is ineffective if no consequences follow. “Supervisors should formulate the ‘final warning’ before a possible dismissal in a particularly emphatic manner.” And it really must be the last one. “If the dismissal does not come, you will eventually lose credibility,” says the expert.

#8: Proportionality disregarded

In addition, employers must always check the proportionality of the employment law measure. In doing so, interests must be weighed up: What type of violation is it? How long has the employment relationship existed? What is the employee’s other behavior like? Are there milder reactions such as a warning?

“Anyone who oversleeps once and arrives at the office ten minutes late, but otherwise always behaves impeccably, should not have to fear a warning,” says Schäfer. “That would probably be disproportionate and therefore ineffective.”