LAG Köln: Informally admonishing an employee not necessary before issuing formal written warning

An employer is allowed to issue a formal written warning without having previously informally rebuked an employee for his misconduct. That was the verdict of the Landesarbeitsgericht (LAG) Köln [Regional Labour Court of Cologne] (Az.: 12 Sa 381/16).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: In many cases, it is necessary for the employee to have received a formal written warning before notice of dismissal can be effectively issued. The formal warning brings the employee“s attention to his breach of duty and gives notice that he could be faced with employment-related consequences such as termination of the employment relationship in the event of a repeat infringement.

While a formal written warning is frequently a prerequisite to effectively dismissing an employee, the employer need not have informally admonished the employee for his misconduct before issuing the formal warning. That was the decision of the Landesarbeitsgericht Köln in its judgment of September 20, 2016. The LAG ruled that a formal written warning cannot be considered disproportionate and unlawful by reason of the fact that the employer could have initially taken a less severe measure by informally rebuking the employee.

In the case in question, a forwarder had issued one of its drivers with a formal written warning. The latter had transported glass without having installed the supplementary buffer beam to secure the goods. As a consequence, part of the cargo was broken. The employer subsequently issued a formal warning, claiming that the driver had failed to properly secure the cargo despite this having been absolutely necessary. The driver then sued to have the formal warning removed from his personnel file, arguing that it had not been evident to him that he was transporting glass and that an informal admonishment would have been sufficient.

The LAG Köln held that the employer had been entitled to issue the formal written warning, as the driver had indisputably failed to secure the cargo as prescribed. A prior rebuke was not necessary. Considering the principle of proportionality, the Court went on to say that there was nothing necessitating that the employer informally admonish the employee before issuing a formal warning, stating that the employee“s attention was ultimately drawn to his misconduct and the situation clarified by means of the formal warning, i.e. that this would not be tolerated. In this way, the employee is called on to conduct himself in a manner that is consistent with his contractual obligations. The Court noted that a formal warning is not associated with any immediate legal consequences and serves as a warning, unlike when in an employee is merely informally rebuked.

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