Warning letter under German labour law

Template This is only a template of a notice of warning and shall be modified and adapted to your situation and needs.

<Sender>

<Recipient>

Notice of Warning

<Date>

Dear Mr./Mrs./Ms. <Surname>,

We unfortunately have to communicate you that we are aware of the following:

<Description of the misconduct>

By doing so, you have violated an obligation under the employment contract, <name / clause>. Your misconduct leads us to this notice of warning.

We hereby expressly inform you that we are not prepared to accept further breaches of duty.In case of another misconduct or illegal behavior, we will be ready to take further measures. These may even mean a termination of the employment relationship. We have sent you a draft of this warning letter in advance in order to give you the possibility to react to our accusations. You have made the following statement:  <Statement> Your explanation, however, does not change the fact. The breach of duty continues to exist for the following reason/-s:   <Reasons> A copy of this letter will be added to your personal file.

Kind Regards,

 

The Employer <Signature>

Employment references

Job references

Employees and freelance employees are entitled to a certificate called in Germany “Zeugnis”.

The prerequisite is a permanent employment relationship so that the assessor has enough time to recognize the professional and personal qualities of the employee.

Person entitled to issue the reference certificate „Zeugnis“

 The only person entitled to issue the reference certificate is the employer, but a superior of the employee can also take the assessment. Exhibitor of the certificate is the employer, but a superior of the employee can also take the assessment. It is important that the assessor is instructed to do so from the employer.  The “grade” of the assessor is recorded in the certificate. External persons are not allowed to issue certificates of work reference. If an insolvency administrator continues to employ an employee, he must issue a certificate. In the case of the death of the company owner the duty to create a reference certificate will be inherited. The person inheriting the business must write a certificate from the records.  

When are you going to receive your “Zeugnis” in Germany?

The right to receive a reference certificate begins with the notice of termination period. Legally the claim to a reference certificate actually arises with the official end of the employment relationship, i.e. on the last working day. Usually, the employee can already apply for his/her certificate beforehand with his/her ordinary dismissal. The reference certificate will be used for new applications as the employee has to be facilitated in finding another job for further employers.

Issuing the reference certificate

The employee must collect the reference certificate from the employer. If the certificate is not yet ready by the end of the employment relationship, the employer must send it per post/email to the employee. The employer has to pay the costs.

Time limit of the employment contract

The employer may limit the employment contract to two years, in case of a new employment relationship.

Limitation Conditions

The following conditions must be respected for shorter time limits:

  • The company has only temporary needs for work.
  • The employee is hired following an education or study. This facilitates the transition to subsequent employments.
  • It is a place of representation (pregnancy or leave of absence)
  • The nature of the work performance justifies the time limit.
  • The time limit has been allowed.
  • Reasons in the person of the employee justifying a time limit.
  • The employee is remunerated from the budget. These are intended for fixed-term employment under budgetary law and the employment corresponds to his remuneration.
  • The term is based on a court settlement.
  • The employee is at least 58 years old on the first working day, i.e. at the beginning of the employment contract.
  • There was no previous employment relationship between the employee and the employer.

 

Form and content of a time-limited employment

The employer must stipulate the end of the employment contract in writing; otherwise the term will be ineffective.

Time limit

Within a period of three weeks, the employee has to react if he wants to appeal to this decision before the Labor Court (Arbeitsgericht). The three-week period begins with the end of the employment relationship. If he does not react during the three weeks, the term of his employment contract becomes effective.

Employment agreement

In an employment contract are formulated the rights and obligations of a working relationship between employer and employee.

The following points are important parts of an employment contract:

  • What? – Description of the tasks which the employer can assign to the employee
  • Where? – Definition of the place where the employee would work
  • When? – Determination of the working time of the worker
  • How long? – Information on the periods of notice and, possibly, on the expiration of the employment contract.

The employment contract is also subject to statutory, business and, where applicable, tariff regulations.

Have your employment contract examined by a lawyer; if you are an employer, make sure to let an attorney design your employment contracts for you! Existing employment contracts should also be regularly reviewed and updated or harmonized.

Working hours in Germany

Working hours and allowed breaks

When should you start working? How many breaks do you have? How long does your break last? How have your working hours been distributed throughout the whole week?

All those information will be provided to you in your contract of employment.

Daily working time

According to the Working Time Act (Arbeitszeitgesetz), the maximum working time per day is eight hours. This time can be extended to up to ten hours. Prerequisite: in six months (24 weeks) the average of your working hours should not exceed 8 hours a day.

Breaks and rest periods

According to the Arbeitszeitgesetz, the following breaks-settlements apply:

 

Working Hours Resting Time
From 6 Hours 30 Minutes
From 9 Hours 45 Minutes

 

The total resting time can be divided in small breaks: e.g. a 30-Minutes break can be divided in 2 breaks x 15-Min. each. There must be at least 11 hours rest period between two working days. Employees may not be working on Sundays and Holidays but exceptions are allowed.

Youth Protection

Pursuant to the Youth Health and Safety at Work Act (Jugendarbeitsschutzgesetz), young employees (under 18) are not allowed to work for more than eight hours a day (for a maximum of 40 hours a week). The employer has to allow underage workers to take days off in order to go to school, if it is the case.

For them, the following resting hours-list applies:

Working Hours Resting Time
From 4,5 Hours 30 Minutes
From 6 Hours 60 Minutes

 

Maternity leave

The following working times are not allowed to pregnant women:

  • Extra-hours
  • Night-shifts (8PM-6AM)

Working on Sundays and holidays.

Period of notice to terminate an employment contract in Germany

Employee

 The employer or employee may terminate at the end of a calendar month (or on the 15th). The period of notice is then four weeks.

Example:

Employee announces the termination on March 26, 2018.

The end of a calendar month is on March 31, 2018.

He leaves on April 30, 2018.

In his letter of dismissal of March 26, 2018 it must be written that his last day is on April 30, 2018.

Employer

The same periods of notice apply to the employer. The period of notice depends on the duration of the working relationship:

Duration of

 the working relationship

Period of Notice
2 Years 1 Month
5 Years 2 Months*
8 Years 3 Months *
10 Years 4 Months
12 Years 5 Months
15 Years 6 Months
20 Years 7 Months

* at the end of a calendar month

The longer the employment relationship, the longer is the relative termination period of notice.The duration of the employment contract is only calculated from the 25th birthday of the employee. Before that, the four-weeks deadline applies. In this case as well, tariff-contractual regulations or agreements of the employment contract apply before this legal regulation. 

Difference between “four weeks” and “one month” 

One month is longer than four weeks (4 x 7 days = 28 days). The employee can still leave on the beginning of the month or at the end of the month. However, if the period of notice is one month, he should present the termination letter a month before. 

Example:In the 30-day month = Present your termination letter at the latest on the 2nd.In the 31st month = Present your termination letter at the latest on the 3nd.

Shorter periods of notice The term of notice may be agreed in less than four weeks in the following cases:• For a maximum period of three months in a temporary job (Aushilfstätigkeit)• For a probationary period of maximum six months, then a notice period of two weeks applies• The employer has less than 10 employees(Trainees count 0, 20 hours/week-employees’ count 1/2 and up to 30 hours/week-employees´ count 3/4)

Special Provision in German labour law:

Severely Disable Persons

A notice period of at least four weeks applies to severely handicapped persons. The termination is only valid with a timely request for approval by the Integration Office.T he severely disable person can be dismissed with the shorter statutory deadlines.

Insolvency Proceedings

In the event of bankrupt, if the insolvency administrator fires the employee of a debtor, or if the employee quits his/her job in an insolvent company, the period of notice varies between three and one months. To the extent that statutory or contractual provisions provide for a shorter deadline, the shorter deadline applies.

Home-workers

Home-workers can be fired/ can quit at any time. If the employment relationship lasts longer than 4 weeks and the home-worker works for a client, the notice period is extended to two weeks.

Warning letter under labour law

In sport, the referee shows yellow and red cards to alert the players of their misconduct. “If you do not follow the rules, you are out! “ A similar system has been created also in the legal world, and that is represented by the “warnings”. A warning letter is similar to a yellow card.

A warning is therefore to point out wrong behaviours or bad performances and eventual warn of dismissal.What many do not know, is that warnings are often incorrectly formulated and for this reason legally vulnerable!If you receive a warning, immediately call an attorney! What is to be observed in the case of a warning?

Is the reason for warning missing?

A warning is only a warning when it is explicitly said what is happened, what is wrong with the employee´s behaviour etc. A mere description of the situation is inadequate and insufficient. For instance, in case of a smoking ban: if the employer writes that the employee smokes in his office, this is not yet considered a warning for misconduct. Only when it is expressly stated in the warning that the employee violates the rules, it can be considered a warning.

Only bad behaviours warnings

A dismissal may have behavioural, personal or business-related reasons, but can only be cautiously justified. The admonition may then only express a decree of order which is conditional on conduct. A special reason is required for extraordinary termination. This regulation is valid within the Employment Protection Legislation.

Only authorized persons are allowed to dismiss other employees

Both employers and employees can issue letters of warning. On the employer’s side, only authorized and qualified persons, including specialist and service supervisors, can issue warnings.

Warning topic =Reason for termination?

A letter of termination can be issued only after two letters of warning. The reason for dismissal has to be connected with the reason of warning. For instance, if an employee has been warned for alcohol consumption at work/alcoholism, this latter cannot be dismissed for „unpunctuality“.

Communication of dismissal

The employer must explicitly announce the termination of the contract. If he does not do so, the warning is not legally valid and thus the termination is void. Formulation example: “If you violate an obligation from the employment contract again, we shall take further measures which may lead to a termination of the employment relationship.” 

The warning has to be understandable:

It is important that the person making the announcement/writing the warning makes it clear to the person concerned that this latter´s behaviour needs to change. For example: if the employees are foreigners, the person in charge to give the information has to make sure to reach to the employees even if there are communication/language-difficulties.

There are no limits to the number of warnings that could be sent /received. The nature of the company, the nature and extent of the breach of duty, the position of the person concerned within the company or the consequences of the misconduct will influence the decision.

Form and Content of the Warning

The person in charge of writing and issuing the warning has to describe the behaviour and list exactly which rules have been broken by the person receiving the warning. He must clearly express what is wrong with the behaviour of the person warned.The warning can be given verbally. For reasons of evidence, however, a written warning is always recommendable.It is important to enclose evidence of the misconduct. If these are missing, the warning is doubtful.

 Removal of a warning from the personnel records

The admonished person is entitled to remove the warning from his personal file in the following cases:• If the warning has lost its effect- The person concerned has been transferred to another work area- The warning is so old that lost its effectiveness• No further misconducts occurred• It is a false or unlawful warningIf the employer is not willing to remove the warning, the person concerned may file a legal action to remedy the expulsion from his personnel records.Statistically, you have really good chances with a lawsuit to remove a warning from your personnel records.

Contact an attorney as soon as possible! We are here for you!

 

Protection against dismissal under German labour law

The regulations on protection against dismissal should give stability and security to the employment relationship. If all conditions for termination have been complied with in all points, the termination is considered effective.

Lawsuit against unfair dismissal

The employee may file complaint against unfair dismissal at the German Labour Court (Arbeitsgericht in German).

If the employee asserts that a termination is socially unjustified or is legally ineffective for other reasons, he has the chance to file a lawsuit within three weeks after the receipt of the written notice of dismissal.

In the event of dismissal for variation of the contract, legal action shall be taken in order to ascertain that the change in terms of employment is socially unjustified or legally ineffective for other reasons.

If the employee has lodged an objection with the works council, he shall enclose the statement of the works council to the lawsuit documentation.

Insofar, as the termination requires the approval of an authority, the appeal-period for bringing the matter to the Labour Court is not initiated until the decision of the authority has been notified to the employee.

Dismissal for variation of contract 

If the employer terminates the contract and offers the employee a variation of their employment relationship, the employee has the option to accept this offer and understand that the dismissal is actually not socially unjustified. This reservation must be declared by the employer to the employee within the period of notice, at the latest within three weeks after receipt of the notice of dismissal.

Termination – opposition proceeding

If the employee considers the dismissal to be socially unjustified, he may lodge an objection at the works council within one week after his dismissal. If the works council considers the appeal to be justified, he has to try to reach an agreement with the employer. It shall communicate its opinion on the objection in writing to the employee and the employer upon request.

Leave of absence under German labour law

“Consider yourself on leave until further notice!” An exemption/leave of absence may be decided colloquially.

This means that the employer releases the employee from labor conscriptions for an undetermined period of time.

Consequences of an exemption from work:

  • The employee can not comply with his work until a legal termination of the contract;
  • The employee must stay away from the workplace;
  • The employee may be entitled to compensation for damages.

Please consider that your entitlement to holidays and the overtime payment do not forfeit with the exemption from work.

The exemption may be the “elegant” substitute for an immediate termination. The employer can remove the employee from his / her position before the statutory period of notice.

The employee may object to the exemption:

  • The works council can object to the exemption after the order of a decent termination of the employer.
  • The employee can take legal action against the exemption before the Employment Court (Arbeitsgericht).

If you are interested in the formal and content related conditions of an exemption agreement, you can prevent possible disadvantages by requesting for more information in due time.

 

Gratuity under German labour law

When the employment contract is terminated, the employee can demand (under certain conditions) for a severance pay/ gratuity (Abfindung) from his employer. This should provide him with a financial compensation for the loss of the workplace.

If an employer pronounces a lawful termination, he does not have to pay any compensation unless it was previously agreed in the employment contract that in case of a regular termination of the employment relationship a severance pay has to be provided.

The amount of the compensation ultimately depends on the individual case. The rule settlement is half a month’s salary per year of work.

If one of the following situations is not applicable, the employee can nevertheless negotiate a severance payment:

  • The employer and the works council provide for a severance payment in the event of termination.
  • The employee makes a request to terminate the employment contract against payment of compensation and the Labor Court gives this order. The employee must justify the application.

The riskier is the move of the employer, as many possibilities has the employee to receive the severance pay.