However, employees have options to take action against a warning. To do this, you should first check whether the accusation made in the warning is actually true. “And if it was not done legitimately, then there is the possibility that I can demand that the employer withdraw the warning from the personnel file,” says Johannes Schipp, a specialist lawyer for labor law.
If the employer refuses, employees can also take legal action – and file a lawsuit to have the warning removed from their personnel file. If you do not want to sue directly, you can alternatively request that a counter-statement be included in your personnel file. This remains documented that the incident that led to the warning is not completely undisputed. According to Schipp, this can prevent the impression of a one-sided presentation by the employer.
Warning in the dismissal protection process
Important: Even if you do not take action against a warning, that does not mean that you accept the accusation. The employer may not conclude from this that the warning was justified.
According to Schipp, if the dismissal protection process does come about later, employees can still argue that the warning was unlawful – even if they did not take action against it at the time of the warning. This can make tactical sense under certain circumstances. After a few years, it often becomes difficult for the employer to prove the legality of the warning.
Limitation of the warning
Instead of falling out with the employer, can employees simply wait for the warning to expire after some time? It’s usually not that simple. There is no direct legal requirement as to how long warnings remain in the personnel file.
According to the specialist lawyer, the most important thing here is how serious the violation was. For minor violations, a warning is often removed from the file after about two years, while serious cases can remain stored for longer.
In special cases, employees can not only request that the warning be removed from their personnel files, but also that the warning as such be revoked, says Schipp. However, this presupposes that there is a special legal interest, for example because there is still a risk that the employee’s rights will be impaired.
About the person: Johannes Schipp is a specialist lawyer for labor law, a member of the German Bar Association (DAV) and was chairman of the executive committee of the labor law working group in the DAV until 2021.
