This series of articles addresses and corrects some of the most common misconceptions in German employment law. Part Three deals with misconceptions regarding warnings.
By: Julia Christina König
Firm: Kliemt.HR Lawyers
As described in Part One and Two of this series, there are many misconceptions relating to German labour law that instead of being critically examined, tend to be simply passed on by ‘word-of-mouth’. This series aims to uncover and clarify frequently occurring legal errors.
In this third part, we tackle a range of issues relating to an intended termination of employment. For instance, there is a persistent rumour that a warning is always necessary before any notice of termination can be issued, or that a notice of termination can only be issued after three warnings. Below we will address and clarify these popular legal misconceptions.
No termination without prior warning?
Not true! First of all, in the case of dismissals for operational reasons or dismissals for reasons relating to the individual, such as long-term illness, it is not necessary to issue a warning before the notice of termination is issued. In such a situation, an employee cannot prevent the dismissal by changing the conduct or situation which led to the dismissal, and there would therefore be little point in issuing a warning.
However, even in the case of conduct-related dismissals, a relevant warning is generally but not always necessary. For breaches of duty by the employee, a warning can only be required firstly if the employer is entitled to expect that the warning will lead to the employee behaving in accordance with his or her contract in the future, and secondly, if the employment relationship is not yet too heavily damaged by the breach of conduct. In the case of particularly severe breaches of duty, where the employee must be aware from the outset that the employer cannot tolerate the misconduct in question, a warning can therefore be dispensed with. Examples in the case law of the Federal Labour Court of such breaches of duty by employees include intentional physical injury to a colleague (ruling of 31 March 1993 - 2 AZR 492/92), working time fraud (ruling of 9 June 2011 - 2 AZR 381/10) or theft (ruling of 11 December 2003 - 2 AZR 36/03).
Once doesn’t count - or no termination without three warnings?
If an employee violates his or her obligations under the employment contract to a relatively minor extent, termination for reasons of misconduct requires a corresponding prior warning for a breach of duty of the same type. Regarding this, various Internet forums claim that in these situations the employer must issue at least three warnings. This is also incorrect. A specific number of warnings, which must precede a conduct-related notice of termination, cannot be generally specified. The decisive factor is whether, on the basis of the existing warning(s), a negative outcome for the employment relationship can already be predicted in the event of further similar breaches of duty. This involves an examination of the individual case.
Repeated warnings do not help much
The cautionary function of a warning can be considerably weakened by the fact that where there are frequent new breaches of duty by the employee the employer repeatedly threatens dismissal in the warning but fails to actually following this up with consequences under employment law. If for years there is only a threat of termination that is not acted upon, then no matter how many warnings are issued, the employee no longer needs to anticipate termination in the event of a similar breach of duty. In such cases these warnings are only ‘empty’ threats.
Practical tip for employers
This does not mean that after a certain number of warnings, no further notice of termination can be issued at all in the event of further similar breaches of duty. However, before giving notice of termination, the employer must then make the final warning a particularly strong one, in order to make it clear to the employee that another such breach of duty will finally lead to notice of termination.
The question as to the number of warnings for similar breaches of duty that will result in the warning function being weakened is not easy to answer. In the opinion of the Federal Labour Court this weakening cannot be assumed to occur after the third warning is issued (ruling of 16 September 2004 - 2 AZR 406/03). The Federal Labour Court expressly justifies this, referencing the widespread practice in working life for contract violations that are perceived as less serious of having several (often three) warnings preceding termination of the employment contract. However, this too can only be conclusively established on the basis of an assessment of the specific circumstances of the individual case. The number of warnings, but also the nature and seriousness of the breaches of duty and the time interval between warnings must be taken into account.
In conclusion, the third part of this series on popular legal misconceptions regarding employment law establishes that a warning does not always have to be issued before every notice of termination. Even in the case of terminations for reasons of conduct, a warning can be dispensed with for serious breaches of duty. However, too many warnings relating to comparable circumstances can weaken the cautionary function of a warning. This can result in an employee no longer having to anticipate dismissal. In such cases the final warning has to be formulated with the corresponding emphasis.