Removal of unlawful warnings from the personnel file – in individual cases even after termination of the employment relationship

Regional Labor Court (LAG) Hanover, judgment of 04.04.2025 - 14 SLa 724/24

Facts of the case

The plaintiff had been employed as a site manager in a care facility of the defendant since 15.07.2020.

In letters dated 05.07.2023, 19.07.2023 and 14.08.2023, the defendant issued three warnings to the plaintiff. The first warning included, among other things, the accusation that the plaintiff had "refused to provide further support and assistance to another employee during her working hours, although he had been expressly requested by the management to offer an orderly handover and support". The content of the two other warnings related to this allegation.

The plaintiff then terminated the employment relationship with effect from 30.09.2023 and sued to have the warnings removed from his personnel file.

He argued that the allegations made could still harm him even after the employment relationship had ended because he worked in the very sensitive area of care. In the event that he applied for a new job in the care sector, it could not be ruled out that the future new employer would make enquiries with the old employer. It should also be noted that the care sector is a fast-moving area. Takeovers and acquisitions of care chains are a reality. The new management could then see the warning in the plaintiff's personnel file if he applied for a job there.

The labor court dismissed the claim.

Decision of the court

The LAG ruled in favor of the plaintiff and ordered the employer to remove the three warnings from the personnel file.

The LAG essentially based its decision on the case law of the Federal Labor Court (BAG), according to which, after termination of the employment relationship, the employee is generally no longer entitled to have even an unjustly issued warning removed from the personnel file. However, such a claim is exceptionally given if there are objective indications that a warning could harm the employee even after termination of the employment relationship and the warning was unjustified.

These conditions were met in the present case.

The warnings were unjustified because the accusation in the first warning (the "refusal of support") was too vague. The warning therefore failed to achieve its purpose of reprimanding a precisely defined misconduct. As a result, the employee did not know what he was specifically accused of and also did not know what he had to refrain from doing. The further warnings were already unjustified because they expressly referred to the first ineffective warning.

There was also a well-founded fear that the warnings could continue to harm the plaintiff even after the termination of the employment relationship.

The LAG justified this by stating that the employee was professionally oriented in the care home sector and had comprehensibly explained that the care sector was a fast-moving area and that the takeover and acquisition of care chains was a reality or that the transfer of facilities could occur in any case. Moreover, it was undisputed between the parties that the care sector is also a very sensitive area, particularly with regard to the allegations expressed in the warnings.

Since the warnings were unjustified, the defendant could not have a legal interest in the retention that would conflict with the plaintiff's interest.

Practical advice

The decision of the LAG is in line with the previous case law of the BAG, according to which a claim for removal of a warning after termination of the employment relationship only exists if it can still harm the employee after termination of the employment relationship and the warning was wrongly issued.

It also underlines two important points that employers should bear in mind when issuing warnings:

• The warning must precisely describe the misconduct to be reprimanded so that the employee can recognize what specific breach of duty he or she is being accused of. Against this background, the date, time, place, incident, parties involved and, if applicable, the consequences should be described concisely but precisely, depending on the information available.
• In addition, employers should avoid referring to another warning in a warning letter, as the mere reference to an unjustified warning may render the warning ineffective.