Sometimes labour law feels like a game of cards: a warning is the yellow card, dismissal would be the red card. In between lies an area in which employers want to change conditions - the dismissal with notice of change. In June 2021, the Cologne Regional Labour Court (LAG) ruled in a case that highlights precisely this area of conflict: two warnings, the revocation of a bonus, plus an extraordinary notice of termination with the right to make changes - and the question of which of these ultimately prevails.
Brief background: A long-standing shift supervisor in a warehouse (more than 100 employees) received two warnings on 13 November 2019: one for alleged poor performance in the inventory management of pallets, the other for a conversation that was said to have disturbed the peace in the company. One week later, on 21 November 2019, an extraordinary termination notice followed: immediate downgrading to a helper position with significantly lower pay. At the same time, the employment contract included a personal compensation allowance (€ 110 per month), which was subject to revocation - the revocation was declared on 23 December 2019. The Cologne Labour Court largely ruled in favour of the employee; the Cologne Higher Labour Court confirmed this on 16 June 2021. Not admitted.
Why is this exciting - and practically relevant? Because the judgement acts like a seismograph, showing where employers need to work properly when issuing warnings, bonuses and notices of termination and where employees have realistic points of attack. And because it goes to the heart of the matter: diligence.
What it was about in legal terms - clearly explained
CautionsThey are not just a raised index finger. Warnings document an alleged breach of duty, remind employees to take remedial action and threaten consequences. They are also often the precursor to dismissal for behavioural reasons. They must therefore be precise, correct and proportionate. The burden of proof for correctness lies with the employer.
Change noticeThe employer terminates the previous employment relationship and offers to continue it under different conditions (different job, less money, different place of work). Extraordinary termination - i.e. without notice - is only possible in exceptional cases: the immediate change must be absolutely necessary, and a relevant warning is usually required beforehand.
Revocation of an allowanceContractual clauses that withdraw allowances "in the event of two warnings in 18 months" are only as strong as the warnings themselves. If these are cancelled, the reason for revocation is often also cancelled. Furthermore, cancellation clauses must be fair and transparent.
What the LAG Cologne decided
The court removed the two warnings from the personnel file. removed:
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Poor performanceA partial accusation related to a calendar week in which the employee was on holiday. If a warning contains (even only) partially incorrect facts, it is invalidated as a whole. This is exactly what happened here.
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Industrial peaceThe discussion with a colleague about the defence against dismissals by the employer - especially during a break - is covered by the fundamental right to freedom of expression (Art. 5 GG). The employer had not been able to explain specifically who had heard what and why this should undermine his authority in the long term. Mere feelings of resentment are not enough.
Consequence: The revocation of the personal equalisation allowance (€ 110 per month) was invalid because the reason for revocation stated in the contract - two justified warnings - did not exist. The LAG also indicated that such cancellation clauses could be subject to scrutiny under general terms and conditions law (keyword § 308 No. 4 BGB), but left this open - it no longer mattered.
And the extraordinary notice of termination? Also ineffective. The mere reference to "massive management failure" is not sufficient for a change without notice. The court emphasised two things:
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Warning requirement: In the case of behaviour-related allegations, it is generally prior warning necessary. In this case, there was no relevant warning regarding the alleged management behaviour.
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Chronological classificationThe incidents complained about were before the warnings. After the clarifying personnel meeting on 14 November 2019 none new incident was identified. The extraordinary amendment immediately on 21 November 2019 was therefore not "unavoidably necessary".
Incidentally, the LAG also dismissed the idea that an ineffective dismissal without notice could be elegantly "reinterpreted" as an ordinary version - the system of dismissal with notice of change provides for this. No abbreviation.
Five key messages to take away
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Warnings have to be effective. Unclear, generalised or partially false accusations are made Nothing at all - they must be removed completely.
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Freedom of expression also counts in the workplace. Anyone who engages in a factual exchange about labour law steps is not automatically attacking industrial peace.
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Allowance revocation needs a solid foundation. If the contract links the cancellation to warnings, these must be lawful otherwise the revocation will be cancelled.
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Termination without notice is the exception. Without relevant Forewarning (warning) and without acute necessity it fails.
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Documentation beats gut feeling. Anyone who claims something must concrete prove: who, when, what, what the breach of duty is supposed to consist of.
Practical guide: How to apply the judgement
For employees
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Check yellow card: If the facts of the warning are correct in every detail? If not, in writing the Distance (with a brief explanation) and submit a counterstatement to the personnel file.
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Collect concrete evidence: Duty rosters, holiday lists, e-mails, names of colleagues - everything that has a date and content. nailed down.
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Do not sign a notice of termination in haste: You can submit a change offer with reservation and have it legally reviewed. In this way, the income remains secure while the effectiveness is clarified.
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Keep an eye on allowances: If an allowance is revoked, check whether the contract has really been cancelled. this constellation - and whether the alleged warnings were issued at all. carry.
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Remain calm but determined: The judgement shows that diligence prevails. Those who argue in a structured manner are in a good position.
For employers and HR
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Draft warnings "technically" clean: Specific duty, specific situation, date, time, persons involved, Vouchers. No mixed warnings with disputed and clear points in the same breath.
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Do not use industrial peace as a general phrase: Explain, who something like perceived and Why that really impairs operation.
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Give a warning before cancellation: In the case of controllable behaviour, a warning is almost always Compulsory. First warn, then - if necessary - cancel.
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Legal review of allowance clauses: Cancellation rights transparent, appropriate and legally compliant formulate; blanket "two warnings = cancellation" mechanisms are risky.
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Work on-the-record: Meeting notes, hearings, follow-ups - good documentation saves a lot of disputes later on.
An image that sticks
Imagine the employment relationship as a suspension bridge. Warnings are the suspension ropes: they span the gap between "mistake made" and "consequence imminent". If the ropes are frayed - i.e. inaccurate, overstretched or partially incorrect - you cannot send a heavy load across them. However, a dismissal without notice is exactly that: a heavy burden. As a result, the Cologne Higher Labour Court says: First repair the ropes (precise warning) before you pass loads over them (termination without notice). Otherwise the bridge will break.
Why this judgement gives hope
Because it creates balance. It protects employees from rash, poorly substantiated measures - and at the same time gives employers clear guidance on how to do things properly. Labour law is not a jackhammer, but a Swiss army knife: if you choose the right tool and use it carefully, you will achieve stable solutions - without collateral damage. This also applies to Labour law in Cologne.
In practice, this means that precision pays off. Those who substantiate statements, issue clear warnings and only then resort to harsher measures will prevail in court. And employees who object calmly but firmly have a realistic chance of having unauthorised entries deleted from their personnel file and averting financial losses.
The bottom line is a simple principle: fairness requires diligence. This is exactly what the Cologne Higher Labour Court made clear once again on 16 June 2021 (case no. 11 Sa 735/20) - and thus pointed both sides in the right direction.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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