In order to effectively issue ordinary notice of dismissal for reasons relating to conduct, it is often necessary for the employer to have previously issued a formal written warning.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Under the rules of employment law, it is often necessary for the employee to be issued with a formal written warning before giving ordinary notice of dismissal for reasons relating to conduct. In the absence of a prior formal warning, the dismissal might not be effective. The legislature has also applied various requirements to formal written warnings that employers need to observe.
The employer should give as detailed an account as possible in the formal warning of the reasons pertaining to the inappropriate conduct and not simply make general statements. If, for instance, an employee frequently arrives late to work, the respective dates and times ought to be mentioned in detail, since it is the employer that bears the burden of proof in the event of a dispute. Moreover, the employer must explicitly point out in the formal warning that the employee is clearly in breach of the relevant contractual agreements as a result of his conduct and prompt him to change his behaviour, otherwise he could be faced with dismissal. The formal written warning should therefore draw attention to the employee’s misconduct and at the same time serve as a warning. If the notice fails to fulfil these requirements, it may legally only constitute a reminder or guidance. If an employee violates his employment contract more frequently, the employer should be sure to actually go ahead and issue a formal written warning to ensure that its tacit consent is not interpreted as a change to the contractual arrangements.
A formal written warning is thus often necessary prior to giving ordinary notice of dismissal so that the employee has the chance to alter his behaviour and fulfil his contractual obligations. Should the employee fail to change his conduct despite a formal written warning, this may justify ordinary dismissal for reasons relating to conduct if the same violation of contractual obligations has occurred. If, for example, an employee has been issued with a formal warning for frequently arriving at work late but the notice of dismissal cites other grounds, then the formal warning has no legal relevance and the dismissal is normally ineffective. The grounds for dismissal must match the reason for issuing a formal written warning.
Lawyers who are experienced in the field of employment law can advise employers on all issues pertaining to formal warnings, dismissal or termination, as well as in relation to other legal matters.
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