Employee warnings: Here’s how employers act legally and fairly
Issuing a warning to employees is not a pleasant task. Nevertheless, it can help draw consequences as a result of misconduct without dismissing your employee immediately. But what’s the right way to do it? As an employer, there are a number of requirements and steps that you should bear in mind.
Key points at a glance
- With a warning, you alert employees to specific misconduct.
- An employee warning sets out what conduct is expected in future and what consequences are possible if violations are repeated.
- The warning should be issued clearly, objectively and respectfully; in practice, it usually makes sense to have written documentation so that it is transparent.
- If it happens again, there may be consequences under labor law, including termination.
What is a warning? Definition and legal framework in Switzerland
An employee warning (often referred to as a “warning” or “reprimand”) is a complaint about unacceptable behavior or inadequate work performanceby the employee . It is linked to the clear expectation that the disputed conduct will not occur in the future or that work performance will improve in one or more disputed points. As a rule, the consequences of repetition are also made transparent. This means that a warning is often a preliminary step towards termination.
In legal terms, employers are bound by private labor law. Under Art. 321a of the Swiss Code of Obligations (SCO), employees are required to follow the employer’s legal instructions in good faith . Under Art. 321d SCO, employers may issue warnings and reprimands if these instructions are not followed by employees.
What is the function of a warning?
An employee warning should provide guidance as to what was wrong, what you expect in the future, and what happens if there is repetition. The purpose of a warning, therefore, is to point out to the employee a breach of duty or problematic conduct and to give the employee the opportunity to change or correct this. For you as an employer, this means above all:
- Clarity and commitment in the employment relationship
- Transparency if further steps are needed
- Fairness: employees know where they stand and have a real opportunity for improvement
Our legal expert Alina Totoescu Wolperth explains: “A warning or the granting of a probation period must not be simply for the sake of appearances, without the employer actually wanting to give the employee a chance to improve. If the employee is dismissed prior to expiry of a self-imposed probation period without any apparent cause, this can be regarded as a breach of good faith and therefore as wrongful.”
What are the reasons for a warning?
A warning can make sense in the case of:
- Failure to follow legal instructions (e.g. repeated failure to comply with safety regulations)
- Unexcused absence or repeated poor timekeeping
- Excessive private use of the internet or cell phone during working hours (if rules apply)
- Disrespectful behavior, bullying within the team, harassment: here, additional clarification and protection of those affected are often particularly important
- Violations of internal policies (e.g. compliance, confidentiality, work procedures)
- Breaches of obligations relating to secondary occupation/non-compete clause or other clear contract topics or directives (depending on company regulations)
Helping you decide: When do I issue a warning?
Not every case of dissatisfaction immediately justifies an employee warning. For classification, it helps to distinguish between three intensity levels:
- “I’m not 100 percent satisfied.”
Have a conversation and clarify expectations. - “I’m unsatisfied to the extent that severance is possible.”
A warning can be a good way of correcting behavior and preparing for dismissal. - “This conduct is intolerable; further collaboration is no longer acceptable.”
Consider summary dismissal. A warning is not always necessary here.
To decide whether a warning makes sense, you should ask yourself the following questions:
- Are the employee’s expectations clear?
- Did the misconduct occur once or repeatedly?
- How serious is the violation: mild, moderate or severe?
- Has there already been a clarifying discussion?
- Is a legal assessment needed early because the case is sensitive or because dismissal is a consideration?
What should be borne in mind when issuing a warning?
Clarification of the facts and duty of care
As an employer, you must clarify the situation in detail and fulfill your duty of care. This includes the initiation of measures to defuse conflicts at work, such as individual or group discussions, the involvement of a mediator or team coaching. Without such efforts, subsequent dismissal may be considered wrongful.
Appropriateness and timeliness of the measures
The intended actions, including a warning, must be appropriate and timely to address the problematic behavior or the conflict. The scale of measures depends on the length of the employment relationship and intensity of the conflict.
Information and consultation of employees
The employee must be informed and consulted about the planned measure in good time. This may include setting a target agreement with a deadline and highlighting the consequences of failure, in particular in the case of underperformance or behavioral issues. As an employer, you are also expressing what is known as a “last chance”.
How should I proceed with issuing a warning correctly?
Many disputes can be avoided if you clarify the situation early and document the warning properly:
- Clarify the facts
React as quickly as possible, as long as the incident can be reconstructed. Clarify what happened and which rule or directive was breached. Take the time to listen to the person in question. This strengthens acceptance and helps clarify misunderstandings. - Have a conversation
Try to understand the employee’s situation. Make it clear in the discussion which rules apply and what is expected of the person. Then try to find a solution together. You should definitely document the meeting. - Formulate a warning (if necessary)
Make sure that you use specific and factual wording. Do not make assumptions and refrain from value judgments. Issue the warning verbally in a personal meeting, but also give it in writing and keep a copy for your file. This allows you to document content and time later. - Arrange a follow-up
Define what needs to change by when and ask what support makes sense for the person. Arrange a second meeting to monitor and discuss the development of events.
It’s important that you act consistently and treat similar cases in a similar way. In tricky cases, it makes sense to seek legal assistance at an early stage before the positions become entrenched.
Checklist: These modules should be included in a warning
- Specific behavior: date, situation, example
- Reference to obligation/rule: directive, guideline, employment contract
- Expectations for the future: concrete and verifiable
- Consequence of repetition: transparent, proportionate
- Optionally helpful: deadline/period for expected improvement and reference to support offers
In what cases can I issue a termination after a warning?
Regular termination
In principle, regular termination is possible subject to compliance with the notice periods. Reasons are not always automatically required, but they must be substantiated in writing on request. If the objectives set out in the warning have not been met or the employee’s conduct is not in accordance with company practice, the reasons are therefore clear.
It’s also important that the termination is legitimate, such as for reasons that go against the principle of good faith.
A clearly documented warning can therefore help to show that you acted proportionately and transparently. It can also be advantageous to involve your legal protection insurance before issuing a regular termination so that you can coordinate the procedure correctly.
Summary dismissal
Under Art. 337 SCO, summary dismissal is only permitted for good cause if continuation of the employment relationship is unreasonable. Serious misconduct includes, but is not limited to, criminal acts at the workplace, general or repeated refusal to work, betrayal of business secrets, acceptance of bribes, performance of competing activities, acts of aggression and insults against line managers or employees. In these cases, no warning is necessary either, but the employer must act quickly and be able to prove the incident. Essentially, summary dismissal can only be given if the employment relationship has irrevocably broken down for the reasons mentioned.
At the same time, the following applies: in less serious cases, a clear warning is often required before summary dismissal is even considered.
If summary dismissal is unjustified, employers may have to cover high consequential benefits . For example, they may have to pay compensation for lost salary up to the end of the ordinary notice period and compensation of up to six months’ salary.
Legal expert Alina Totoescu Wolperth says: “The common belief is that many business owners assume that summary dismissal is permissible, but it only applies in very limited cases. For this reason, it is very important to contact your legal protection insurer to clarify the admissibility of the measure before actioning the dismissal.”
What options are there in the event of a dispute?
If employees dispute the warning or the conflict escalates, the best thing to do is stick to the facts: documentation, specific incidents, clear expectations. Check whether a clarifying discussion or mediation makes sense. Get legal support if the situation is complex or termination is a consideration.
Frequently asked questions about employee warnings
Is a verbal warning valid?
Yes, in principle, a warning can also be issued verbally, because no mandatory form is prescribed. In practice, a written warning usually makes more sense: it creates clarity and can be better documented later (content, timing, delivery).
What reasons are not allowed for a warning?
A warning should relate to a specific breach of duty or to controllable conduct (e.g. breach of directives, rules, work procedures).
A warning is generally not the right tool for issues over which employees have little influence (e.g. lack of specialist knowledge without prior training, personal strain, illness).
Warning due to refusal to work: What should I do?
First, clarify what exactly was refused and why (misunderstanding, reasonableness, safety, health). Document the process objectively (time, discussion, expectations). Depending on the situation, a warning may be useful. In serious cases, termination may also be relevant.
Written by:
Simona Audia
Simona Audia is a Content Manager at AXA and researches interesting content for you on the subjects of insurance and pensions.
