The legal entitlement to the formal withdrawal of a written warning/admonishment

LAG Lower Saxony, judgment dated 20.11.2014 - 5 Sa 980/14

If an employee is issued with a written warning or admonishment, the question of possible legal protection arises. Under the case law of the Federal Labour Court (BAG), the employee can demand removal of an unjustified written warning from the personnel file in addition to a having a right of reply. Whether and to what extent a claim also exists to withdrawal of an unjustified written warning or admonishment has thus far not been clarified conclusively, and was the subject matter of a judgment by the State Labour Court (LAG) Lower Saxony.

The parties were involved in a dispute concerning whether the employee taking legal action had an entitlement against her employer to withdrawal of a written warning and of an admonishment, both of which had been issued by email and not included in the personnel file. The claimant received an email in which a member of the defendant’s Board of Management accused her of not yet having completed a report requested, and made reference to possible consequences in this respect. In a further email, the representative expressed, among other things, his surprise and displeasure at the claimant’s cancellation of appointments, and explained that he was still waiting for the naming of Spanish contact persons. He also provided information concerning new work duties and a new official place of work. Both emails were sent to colleagues or superiors of the claimant in copy (cc). The claimant has disputed the accusations made. She is seeking withdrawal of the emails assessed as written warning and admonishment. The defendant has placed on record that any complaints and violations of obligations, made or claimed in the emails, would not be used in future for any possible personnel measures against the claimant. Nevertheless, the defendant is standing by the factual accuracy of the accusations made.

Decision of the LAG Lower Saxony

The LAG Lower Saxony has decided that the claimant is not entitled to withdrawal of the statements contained in the emails. An employee is not entitled to the issuing of a formal declaration of withdrawal, if the employer has previously stated that he will not use the unjustly issued written warning for any possible personnel consequences against the employee. This also applies if he declares that he stands by the factual accuracy of the accusations made therein.

The LAG assumes that the declarations requested by the claimant go too far, and are not necessary for effectively taking account of the interests of an employee in legal protection. Rather, sufficient account is taken of the claimant’s need for protection through the fact that the defendant has issued a binding declaration that he will not derive any consequences whatsoever from the two email letters. The forwarding of the emails to colleagues or superiors likewise does not create any need for legal protection concerning the withdrawal of the emails as a whole. Although a claim may exist to withdrawal of individual disapproving and libellous comments contained in these emails, the claimant has not however asserted any such claim in the dispute.

Appeal on a point of law to the BAG

The LAG has granted leave for an appeal to the BAG on a point of law based on fundamental importance of the matter in dispute, as it has not yet been clarified what content an isolated application for “withdrawal of an admonishment/written warning” does or can have under the system, developed by the BAG, of legal protection of an employee against disapproving comments by the employer. The appeal on a point of law is pending under file ref. 2 AZR 64/15.

To date, the BAG has only commented on the withdrawal of a written warning demanded in addition to removal from the personnel file, and in this respect has assumed that “withdrawal and removal” are mainly to be understood as uniform claim to elimination, but, given a corresponding statement of claim, it can also be assumable that the aim behind the withdrawal is also revocation of the comments contained therein (BAG 19.7.2012 – 2 AZR 782/11).

Summary

It remains to be seen how the BAG decides on the appeal allowed on a point of law. A convincing fact is that the LAG has not granted the employee any legal entitlement to formal withdrawal of the written warning or admonishment in the constellation at hand. At the same time, the employer should avoid issuing written warnings and admonishments via emails that are forwarded to colleagues.