Dismissed for Conduct? Why the Prior Warning Usually Decides the Case

Has your employer dismissed you over your conduct without first issuing a formal warning? That is precisely where most of these dismissals fail in court.

You have a dismissal on your desk based on alleged misconduct – you arrived late, failed to follow an instruction, or raised your voice during a disagreement with a colleague. And now you are asking yourself: was your employer really entitled to do that, just like that, without speaking to you first or giving you a warning? In the vast majority of cases the answer is: no, not without a prior formal warning.

In brief

As a rule, a dismissal for misconduct requires that you were previously given a formal warning (“Abmahnung”) for a comparable breach of your obligations. Without a valid warning, the dismissal is usually ineffective. Only where the breach is especially serious and immediately and gravely undermines the relationship of trust can a warning be dispensable. In practice, three questions often decide whether you win or lose before the labour court: Was there a warning at all? Was it formally sound? Does it fit the conduct you are now accused of?

How I can help you

• I check whether your dismissal even requires a valid, on-point warning and whether one was in fact given
• I monitor the deadline for the unfair dismissal claim and file the claim in good time
• I check whether the works council was properly consulted
• I draft a counter-statement to unjustified warnings held in your personnel file
• I negotiate with your employer over withdrawal of the dismissal, continued employment or a severance payment

The formal warning: a shot across the bows before dismissal

Under Section 1(2) of the Unfair Dismissal Act (Kündigungsschutzgesetz, KSchG), a dismissal for misconduct is only socially justified where it is prompted by grounds relating to the employee’s conduct. “Conduct” means this: it concerns something within your control that you could do differently in future – unlike a dismissal for personal reasons, for example on grounds of ill health.

That is precisely where the central rule comes from: before an employer may dismiss you, it must in principle give you the chance to change your conduct. That chance is the formal warning. It serves three purposes:

• Notice function: it tells you specifically which conduct the employer takes issue with.
• Reprimand function: it makes clear that the employer disapproves of that conduct.
• Warning function: it leaves no doubt that, should the conduct be repeated, dismissal will follow.

If any one of these functions is missing, or if no warning was issued at all, the dismissal will usually lack a legal basis. It is then not “prompted” by your conduct within the meaning of the Act. Quite simply, you were never given the chance to change your behaviour.

When is a warning actually valid?

Not every letter of reproach amounts to a valid warning. For the purposes of a court’s review, three points typically matter:

1. Identify the specific breach of duty. The warning must describe the incident precisely – with date, place and what happened. Only then can you tell what is being objected to. Blanket accusations such as “poor work performance” are not enough.
2. Contain a threat of dismissal. The warning must make clear that, if the conduct is repeated, employment-law consequences up to and including dismissal will follow.
3. Match the later dismissal. The dismissal must rest on the same or at least a comparable breach of duty. If you were warned for lateness and then dismissed over a completely different allegation, that warning will usually not support the dismissal.

Where a warning has been issued without justification or is inaccurately worded, you have a right: under Section 83(2) of the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), you may have your own written statement placed on your personnel file. The employer must attach this counter-statement to the file. In addition, depending on the case, you may demand that the employer remove the unjustified warning from your personnel file altogether.

When can a warning be dispensed with?

Not every dismissal for misconduct requires a prior warning. Section 1(2) KSchG does not itself expressly require one. It is nonetheless usually treated as a precondition, because the employer must act proportionately: it must always choose the milder means first where that would serve the same purpose.

A warning may therefore be dispensable where:

• the breach of duty is so serious that you could never have seriously expected the employer to tolerate it (for example in cases of grave breaches of trust),
• a warning would plainly no longer change your conduct, or
• there are particularly serious breaches of duty in the sphere of trust that immediately and lastingly damage the employment relationship.

Each of these is a matter of judgement on the facts of the individual case. Sweeping statements along the lines of “theft never needs a warning” fall short, even though such cases do in practice often fall among those where a warning is dispensable. The employer must also consider means milder than dismissal – such as a transfer to a different post or a dismissal for altered terms (“Änderungskündigung”) – before resorting to a dismissal ending the employment.

Works council, deadlines and the distinction from summary dismissal

Consulting the works council. If there is a works council at your workplace, it must be consulted before any dismissal, under Section 102 BetrVG. A dismissal without consultation, or with a defective consultation, is ineffective. This applies regardless of how strongly the grounds for dismissal otherwise stand up. For an ordinary dismissal the works council has one week to raise objections; for an extraordinary (summary) dismissal, only three days.

Time limit for a claim. If you wish to challenge the dismissal, you must bring an unfair dismissal claim before the labour court within three weeks of receiving it. This deadline is strict. If it is missed, the dismissal is deemed effective from the outset – even where it was in fact unlawful.

Summary dismissal instead of ordinary dismissal. A dismissal for misconduct is frequently issued summarily, relying on Section 626 of the Civil Code (BGB). This requires “good cause”, meaning facts on account of which the employer cannot be expected to continue the employment until the ordinary notice period expires. In assessing this, the employer must weigh all the circumstances against one another. Here too, the rule holds: depending on the seriousness of the breach, a warning may be required before a summary dismissal is even permissible. There is also a separate, tight deadline here: under Section 626(2) BGB, the employer must dismiss within two weeks of learning of the relevant facts. If the employer had known of the incident for longer than two weeks, the summary dismissal will usually be ineffective on that ground alone.

A typical case from practice

One client had worked for several years at a medium-sized company. After a heated exchange of words with his line manager, he received a summary dismissal, with an ordinary dismissal in the alternative, for “repeated misconduct”. On closer examination it turned out that there was indeed a warning from the previous year – but it concerned a quite different matter, a late notification of sickness. As to the conduct now alleged, the argument with his manager, there was no prior warning whatsoever. On top of that, the employer had failed to consult the existing works council. In the end, the dismissal could be challenged with good prospects of success. The incident itself was not trivial – but the employer had not met the formal and substantive requirements.

Common mistakes

• Waiting too long. The three-week deadline for the unfair dismissal claim runs from receipt of the dismissal, not from your conversation with a solicitor. Those who hesitate often lose their right to bring a claim for good.
• Simply accepting the dismissal because you “really did make a mistake”. Even where there was genuine misconduct, the dismissal can still be ineffective – for instance for want of a matching warning or because of formal defects.
• Letting an unjustified warning pass without comment. Failing to counter an inaccurate warning with a counter-statement or a request for its removal is a risk. That very warning may later support a dismissal.
• Signing a termination agreement too hastily. Such agreements can be disadvantageous, among other things when it comes to unemployment benefit. They also deprive you of the chance to have the grounds for dismissal reviewed by a court.

Frequently asked questions

Must I always be given a formal warning first before I can be dismissed for my conduct?

As a rule, yes. In cases of dismissal for misconduct, the formal warning is regarded as the milder means and is therefore usually a precondition for an effective dismissal. Exceptions exist for particularly serious breaches of duty in the sphere of trust, where the employer plainly could not have expected its conduct to be tolerated.

How many warnings does the employer need before it can dismiss me?

The law names no fixed number. What matters is that there is at least one on-point, formally valid warning for a comparable breach. Even so, you must have come to attention again in a comparable way.

What can I do about an unjustified warning without going straight to court?

Under Section 83(2) BetrVG you may require your written counter-statement to be attached to your personnel file. Depending on the individual case, you may in addition demand that the employer remove the warning from the personnel file altogether.

What happens if the works council was not consulted before my dismissal?

Then the dismissal is ineffective under Section 102 BetrVG, regardless of how well-founded the actual grounds for dismissal may be. This is a purely formal, but very effective, line of attack.

How long do I have to challenge the dismissal?

You must bring an unfair dismissal claim within three weeks of receiving the dismissal. This deadline applies regardless of whether the dismissal was an ordinary or a summary one.

Your next step

A dismissal for misconduct often stands or falls on details that seem inconspicuous at first glance. These include the exact wording of an old warning, the point in time at which the employer learned of the incident, and the proper involvement of the works council. Because the three-week deadline for a claim runs relentlessly, you should not wait. In an initial consultation I will check for you whether your dismissal holds up against these requirements and set out your specific options. You can find more about my work in employment law on my topic page. Get in touch while the deadline is still running.

Disclaimer: This article provides general information and does not constitute legal advice. It cannot replace individual advice on the facts of your particular case.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-08-23.

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