Warning letters in labour law
When is a warning letter effective?
A warning letter is a key instrument in labor law and plays a crucial role, particularly in the context of terminations. Specifically, in cases of termination due to employee misconduct, it is often a prerequisite for the lawful termination of the employment relationship. On January 6, 2025, the Berlin Labor Court ruled that an employee may not accuse their employer of undermining democratic processes and promoting the rise of the AfD without providing evidence to support such claims.
*where only the masculine form is mentioned in this article, the feminine / diverse form is also included
Labour Court Berlin, verdict of 6th January 2025 - 58 Ca 4568/24 (PM)
Summary of the press release from the Labor Court Berlin
The parties are in dispute over the removal of a warning letter.
The plaintiff is employed by the defendant university and serves as an exempted member of the works council. He is also a board member of the Verdi workplace group, whose board published an online call to participate in a day of action, among other things, against the AfD. In this call, the defendant university was accused of failing to comply with collective agreements, outsourcing tasks in lower wage groups with a high proportion of migrant workers, undermining co-determination and democratic processes, and obstructing union organization. Furthermore, the call stated that the university’s actions were contributing to the rise of the AfD.
In response, the defendant university issued the employee a warning letter. The university argued that the referenced sections of the call constituted defamatory criticism and therefore represented a breach of the duty of loyalty inherent in the employment relationship. The plaintiff filed the present lawsuit seeking the removal of the warning letter from his personnel file.
The labor court dismissed the lawsuit for the removal of the warning letter.
The court held that the plaintiff had breached his duty of care in the employment relationship through the statements in the call. While the call was recognized as an expression of opinion due to its evaluative elements, it exceeded the boundaries of even polemical or exaggerated criticism in terms of context, purpose, and occasion. Instead, it amounted to defamatory criticism not protected under the freedom of expression guaranteed by Art. 5 (1) of the German Constitution Act. Moreover, the court noted that the allegations lacked objective evidence. For example, the outsourcing of cleaning services is common practice in the public sector.
Conclusion & practical tip
The decision of the Berlin Labor Court highlights the balance between an employee's freedom of speech and their duty of loyalty in the employment relationship. While freedom of expression is constitutionally protected in Germany, it must not result in the disruption of the employment relationship through defamatory criticism of the employer. According to established case law of the Federal Constitutional Court, defamatory criticism occurs whenever the focus shifts from a factual discussion to pure defamation (cf. BVerfG, ruling of 02.11.2020 – 1 BvR 2727/19). Employees should be fully aware of their statements in the professional context and ensure that their criticism remains constructive and factual. Otherwise, the issuance of a justified warning letter could already constitute the first step towards a dismissal for behavioral reasons.
Author of this article: Janina Aue, Lawyer & Mediator
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