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Warning due to inadequate fulfillment of the duty of care

Has an employee violated their duty of care?

The answer in detail

Tips on the subject of breaches of an employee’s duty of care

If an employee repeatedly violates their duty of care, this can be grounds for termination. But before termination, however, a warning must first be issued. 

What is a violation of the duty of care?

If an employee violates a duty of care set out in their employment contract, then inadequate performance of the employment contract has occurred. This includes, for example, working too slowly as well as careless treatment of production resources and materials. 

Is there a standard to measure when a violation of the duty of care has occurred?

It is normal that not every employee can deliver the same level of quality. One or one of several employees maybe always render the poorest work without it necessarily being concluded that they don’t work to a satisfactory standard. However, clear, long-term shortfall of the performance average is an indication that the employee works less than they could.  If the employer argues this before the labor court, the employee must then explain why they consider they are working to their full performance capability despite their below-average performance (i.e. cannot achieve more). It must also be taken into account in favor of the employee that within increasing age, human output decreases to some extent. Employers can warn employees who deliberately do not exhaust their own skills – whether this be out of frustration or to conserve energy for other activities.

Am I required to issue a warning in the case of a violation of the duty of care?

No, there is no obligation. It makes sense to issue a warning only if an improvement in the situation can be hoped for and the employee also really has the opportunity to change something. In the case of a lack of specialist training and education or a lack of resiliency, a warning will be rather ineffective. 
In the case of a summary dismissal, you must distinguish between grounds that do not require a warning and those that do. Here, there are no clear dividing lines, however. 
A warning is required prior to summary dismissal in the following cases: 

  • Alcohol/drugs at the workplace 
  • Unexcused absence
  • Regular tardiness or leaving prematurely
  • Refusal to work

No warning is required for a summary dismissal if the continuation of the employment relationship has become unfeasible, in other words if sever breaches of duty have occurred: These include, for example:

  • Theft at the workplace
  • Accepting bribes
  • Serious insults, threats, sexual attacks, or injury to employees or customers

What has to be included in the warning?

The warning must describe as precisely as possible which breaches of duty the employee is being accused of. Likewise, it must be clear from the warning what the threatened consequences are. A template for download can be found at the end of the article. 

Does the warning have to be issued in writing?

No, not generally. But for reasons of proof, the warning should be issued in writing and stored in the employee's file. 

Download our free template for issuing a warning!

Important documents
Vorlage Verwarnung Schlechterf├╝llung