Formal warning at work: what it means and how to respond

What is a formal warning in employment law?

A formal warning is the formal objection to misconduct in an employment relationship. The Federal Labour Court describes two sides: the employer points out your contractual duties to you and records that you have breached them (reprimand and documentation function). At the same time, it asks you to behave in accordance with the contract and announces consequences in case it happens again (warning function), according to the BAG in its judgment of 19 July 2012 (2 AZR 782/11, para. 20).

The statute only mentions the formal warning in general terms: anyone who wants to terminate a continuing obligation for good cause because of a breach of duty must, as a rule, first issue a formal warning without success (Sec. 314 (2) BGB). In employment law, the requirement of a formal warning follows above all from the principle of proportionality: dismissal is the last resort (BAG, judgment of 10 June 2010, 2 AZR 541/09, paras. 35 to 37).

Do not confuse: In competition and copyright law, an Abmahnung means something else. There, someone objecting to an infringement demands a cease-and-desist declaration with a penalty clause and often reimbursement of their lawyer's fees (Sec. 13 UWG, Sec. 97a UrhG). If you are affected as an online shop operator, you will find background in the guide Legal texts for online shops. Tenancy law also has the formal warning as a preliminary step to termination without notice (Sec. 543 (3) BGB); more on this under summary termination of a tenancy. This guide only covers the formal warning in an employment relationship.

Formal warning, reprimand, dismissal: the difference

Not every criticism is a formal warning. What matters is the content, not the heading. A letter headed "reprimand" (Ermahnung) can be a formal warning if it contains all the elements; a letter headed "formal warning" without a warning of consequences is not one.

Feature	Reprimand	Formal warning	Dismissal
Purpose	pointing out misconduct	objection and warning	ending the employment
Threat of dismissal	no	yes, in case of repetition	not applicable, the dismissal has been given
Consequence for you	does not prepare a dismissal	basis for a conduct-related dismissal in case of a new, similar breach	the employment ends unless you file a claim
Form	none	no statutory form, written form is usual	in writing, electronic form excluded (Sec. 623 BGB)
Your remedies	counter-statement	counter-statement, complaint, demand for removal, claim	unfair dismissal claim within 3 weeks (Sec. 4 KSchG)

What must a formal warning contain?

A valid formal warning must be specific enough for you to know what you are accused of and what you are supposed to do differently in future. General statements such as "You are constantly late" or "Your performance is inadequate" are not enough. You can have formal warnings that are vague in content removed from your personnel file (BAG, 2 AZR 782/11, para. 13).

Check your formal warning against these points:

If the warning is missing, there is no formal warning in the legal sense, at most a reprimand. If the specific facts are missing, the formal warning can be challenged. Several allegations in one letter are possible; if one of them is not true, according to case law the entire formal warning must be removed from the file.

Form, receipt and who may issue a formal warning

Form: The statute does not prescribe any form for the formal warning. An oral formal warning is also valid. Employers nevertheless almost always issue formal warnings in writing, because in a dispute they have to prove what they said. A collective agreement or your employment contract may require written form.

Receipt: The formal warning must reach you. As with any declaration, in a dispute the employer bears the burden of proving that it was received. This is why employers have receipt acknowledged or hand over the formal warning in front of witnesses.

Who may issue a formal warning? Not only those who may dismiss, but anyone who can give you binding instructions on the place, time and manner of your work, for example your team leader.

Hearing and works council: There is no general obligation to hear you first. However, the collective agreement for the public service of the federal states requires a hearing before anything to your disadvantage is added to the personnel file (Sec. 3 (6) sentence 4 TV-L); the TVöD contains no such rule. On collective agreements, see Notice periods under the TVöD. The works council (Betriebsrat) does not have to be involved before a formal warning, unlike before a dismissal (Sec. 102 BetrVG).

Formal warning: typical grounds

A formal warning can only be issued for conduct that you can control. The BAG assumes that controllable conduct can already be influenced by the threat of consequences (2 AZR 541/09, para. 36). The formal warning must also not violate the principle of proportionality (BAG, 2 AZR 782/11, para. 13); this may be the case for complete trivialities.

Breach of duty	Example	Note
Lack of punctuality	repeatedly arriving late, overrunning breaks	each incident with a date
Unexcused absence	you stay away from work without explanation	each day of absence with a date
Breach of the duty to notify and provide evidence in case of illness	you do not report sick without delay	duty under Sec. 5 (1) EFZG
Refusal to work	you refuse a permissible instruction	whether the instruction was permissible is often the point in dispute
Poor performance	repeatedly faulty work despite instruction	distinction from mere inability is difficult
Disrupting the peace in the workplace	insulting colleagues, disrespectful tone	serious cases can lead to dismissal without a formal warning
Secondary employment without notification	breach of a contractual duty to notify	more in the guide Side business
Taking holiday without permission	you start your holiday without approval	depending on the case, can also lead to dismissal without a formal warning

Illness itself is not a ground for a formal warning. You are not to blame for being ill, so your employer may not issue you a formal warning because of absences. It can, however, issue one if you breach your duties under Sec. 5 (1) EFZG, i.e. do not report your incapacity for work without delay. If you have statutory health insurance, you do not have to submit the certificate yourself, but you must have your incapacity for work established by a doctor in good time (Sec. 5 (1a) EFZG). More in the guide Dismissal during sick leave.

When is a formal warning invalid?

The BAG names four cases in which you can demand the removal of a formal warning from your personnel file (judgment of 19 July 2012, 2 AZR 782/11, para. 13). According to this, the formal warning can be challenged if it

1. is vague in content, i.e. does not make clear which conduct is objected to,
2. asserts incorrect facts, such as an incident that did not happen that way,
3. is based on an incorrect legal assessment, for example because the conduct objected to was not a breach of duty at all,
4. is disproportionate, because the objection is out of all proportion to the breach.

In addition, a formal warning that was issued rightly may have to be removed if the employer no longer has a legitimate interest in keeping it in the file (ibid., paras. 13 and 21). More on this below.

Typical weak points: a missing date, a missing warning, a sender without authority to give instructions, or conduct that was previously permitted or tolerated for a long time.

Received a formal warning: your options

A formal warning does not change your pay or your tasks. You do not have to respond immediately, but you should decide what you want: to ease the relationship or to secure your position for a dispute.

Option	Basis	What it achieves	What to watch out for
Do nothing	none	no further strain on the relationship; you can also challenge the formal warning later	secure evidence anyway
Counter-statement	Sec. 83 (2) BetrVG	your view is in the personnel file	stay factual; the employer learns your arguments early
Inspection of the personnel file	Sec. 83 (1) BetrVG	you see what has been collected about you	a works council member may accompany you
Complaint	Sec. 84, 85 BetrVG	the employer must respond to the complaint, the works council can mediate	a complaint must not lead to any disadvantage for you (Sec. 84 (3) BetrVG)
Demand removal	by analogy with Sec. 242, 1004 (1) sentence 1 BGB (BAG, 2 AZR 782/11, para. 13)	an unjustified formal warning disappears from the file	in writing, with reasons
Claim for removal	labour court (Arbeitsgericht)	clarification by the court	at first instance, each side bears its own lawyer's fees (Sec. 12a (1) ArbGG)

Your employer may not put you at a disadvantage for exercising your rights in a permissible way (Sec. 612a BGB).

What speaks for waiting? If a conduct-related dismissal follows later, the employer must prove in the proceedings that the formal warning was justified. An early counter-statement, on the other hand, already shows the employer your arguments now. Which is better depends on your goal and the evidence.

How to proceed:

1. Compare the formal warning with the checklist above.
2. Secure evidence: emails, duty rosters, names of colleagues who were present, your account of events with dates.
3. Do not sign anything that goes beyond an acknowledgement of receipt.
4. Decide: wait, add a counter-statement, demand removal or file a claim.
5. Avoid similar breaches, because they would support a dismissal.
6. If formal warnings pile up or a termination agreement is on the table, have a lawyer check it.

If unfounded formal warnings pile up in a targeted way, also read the guide Bullying at work.

Do I have to sign a formal warning?

No, not in the sense of agreeing to it. There is no obligation to accept the allegation. Many employers, however, ask for a signature to prove receipt. You can give a pure acknowledgement of receipt ("received on …") without harming yourself; with it, you only confirm that you have received the letter. If, on the other hand, it states that you have "noted and accepted" the allegation, do not sign, or add by hand "receipt confirmed only". If you refuse to sign anything, the employer can prove receipt in another way, for example through witnesses. The formal warning does not become invalid because your signature is missing.

Formal warning: deadline and duration of effect

How quickly must the employer issue a formal warning? There is no statutory deadline. This distinguishes the formal warning from summary dismissal, which can only be given within two weeks of learning of the relevant facts (Sec. 626 (2) BGB). If the employer waits a very long time, its right to issue a formal warning may be forfeited (Verwirkung).

How long does a formal warning remain effective? Here too, there is no fixed period, neither in the statute nor in the case law of the BAG. You need to distinguish two things:

• Warning function: After a longer period without a new breach, the formal warning can lose its warning effect. The employer must then issue a new formal warning before a dismissal. How long this takes depends on the circumstances of the individual case (BAG, 2 AZR 782/11, paras. 20 and 35).
• Personnel file: You cannot demand the removal of a justified formal warning merely because its warning function has faded. The right only exists once the conduct objected to has become irrelevant to the employment relationship in every respect. This is not the case as long as the formal warning may still play a role, for example for a transfer, a promotion, the job reference or a later balancing of interests in a dismissal (BAG, 2 AZR 782/11, headnote and para. 21).

Example: Jana receives a formal warning for an unexcused late arrival. Afterwards, she is punctual without exception for several years. If she is late again, a dismissal can hardly be based on the old formal warning alone; the employer would have to issue a new one. That does not mean, however, that the formal warning has to disappear from her personnel file.

Fixed periods such as "after two years it is gone" are not in any statute. If your collective agreement or a works agreement provides for a deletion period (Tilgungsfrist), that period applies.

How many formal warnings before a dismissal?

There is no fixed number. Neither the Protection Against Dismissal Act nor the BGB names a minimum number. In many cases, one relevant formal warning is enough: if you breach your duties again after a proper formal warning, it can regularly be assumed that there will be disruptions in future too (BAG, 2 AZR 541/09, para. 36).

"Relevant" means: the new breach must be similar to the one for which the formal warning was issued. A formal warning for arriving late does not support a dismissal for completely different misconduct. For minor breaches, labour courts may require more than one formal warning; if, on the other hand, the employer issues formal warnings again and again without drawing consequences, the warning can lose weight.

Dismissal without a formal warning: It is possible if a change in conduct cannot be expected even after a formal warning, or if the breach of duty is so serious that it is obviously out of the question for the employer to tolerate it, and this is also recognisable for you (BAG, 2 AZR 541/09, para. 37). These principles also apply to criminal offences against the employer's property; there are no "absolute" grounds for dismissal (ibid., para. 38). When a dismissal without prior warning holds up is explained in the guides Summary dismissal and Extraordinary dismissal.

The same incident: If the employer has issued a formal warning for an incident, it generally can no longer dismiss you for exactly that incident. With the formal warning, it has shown that it wants to continue the employment (BAG, judgment of 19 November 2015, 2 AZR 217/15, para. 28).

Without the Protection Against Dismissal Act: If the Protection Against Dismissal Act does not apply to you, for example in the first 6 months (Sec. 1 (1) KSchG) or in a business that normally employs 10 or fewer employees (Sec. 23 (1) KSchG), the employer does not need a reason for an ordinary dismissal and therefore no prior formal warning either. For summary dismissal, Sec. 626 BGB still applies. More on this in the guide Notice period during probation.

When the dismissal itself holds up is explained in the guides Conduct-related dismissal and Ordinary dismissal. If you have already been dismissed, your claim must reach the labour court within 3 weeks of receipt (Sec. 4 KSchG, see Unfair dismissal claim: deadline).

Formal warning by the employee

You can issue a formal warning too. If, for example, your employer repeatedly fails to pay your salary or does not employ you in accordance with the contract, you must as a rule issue a formal warning before you yourself resign without notice for good cause (Sec. 314 (2) BGB). If the employer causes the termination through conduct in breach of contract, it owes you compensation for the damage resulting from the termination (Sec. 628 (2) BGB). The two-week deadline also applies to your summary resignation (Sec. 626 (2) BGB).

For employers: what matters when issuing a formal warning

A faulty formal warning can bring down a later dismissal, because as the employer you must set out in the proceedings that it was justified. Check before issuing a formal warning:

We deliberately do not provide template texts, because the wording depends on the individual case. Recht 24/7 advises employers at a fixed price and, on request, drafts formal warnings together with you.