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Disclaimer: I am asking this question for a friend, since he does not want to make an account here for one reason or another.

My friend works as an IT expert in quite a large company, in Germany. He is responsible for many of the systems there: coding, databases, sharepoint and many others. Suffice to say, he is a busy guy. He is NOT a manager.

He reports to a manager that basically handles the prioritisation of his work, manages the projects and so on - management work. He [friend] also reports his progress on various tasks to this manager. One other important thing, is that his company implements the "8 hours of your butt in our chair" policy, irrelevant of actual workload.

Recently, a day unlike any other had occurred: there was no work. Everything was working perfect, there were no user reported problems, there were no tasks left to finish etc. His next "big" project would start Monday (it was Friday), so he showed up at 8 AM and basically had nothing to do. He asked the manager, checked the ticketing system and checked his mailbox - nothing was to be done. So, after remembering that a project in about 2 months would require him to work with technology he's unfamiliar with, he decided to read up and test this new tech in preparation for his project.

After that day, he reported to the manager that since there was nothing for him to do that day, he focused on preparing for Project X using Tech Y, and sent a short report on what he found out during his testing.

Come Monday, and he received a formal written warning (an Abmahnung) for what was basically formally worded "slacking off the whole day, doing things unrelated to his current workload".

The question is: was the management in the right to issue such a warning and how can he best defend himself about it?

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    So when informing the manager that there wasn't a workload for that day, what was the manager's response?
    – user44108
    Commented Aug 10, 2018 at 9:40
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    The response was to "finish any late tasks, handle whatever comes in that day"
    – Yuropoor
    Commented Aug 10, 2018 at 9:44
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    @JoeStrazzere What was the friend to do if there were no late tasks or new tasks?
    – paparazzo
    Commented Aug 10, 2018 at 12:47
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    @paparazzo tell the boss "there are no late tasks, and there's nothing new that has come in yet. Do you want me to just sit here waiting for things to come in, or can I prepare for Project X using Tech Y." If he says wait, then do so for an hour or so, then come back and say the exact same thing. Do this every hour till the boss gets the reality of the situation. That is apparantly what the boss would have liked, from the way it reads to me.
    – user87779
    Commented Aug 10, 2018 at 17:12
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    To clarify, I asked him what he actually received and it was an "Abmahnung". He will be talking to a lawyer on Monday to get some legal advice as suggested here. Thank you.
    – Yuropoor
    Commented Aug 11, 2018 at 21:33

6 Answers 6

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Talk to a lawyer, now. This is specific to Germany.

  • You have limited time to oppose this formal notification
  • According to German law this may have serious implications
  • According to German law it must be substantiated.

The last one is significant.

Slacking off is not worthy a written notification unless it happens severely and/or over longer durations. Also the manager must have talked to you about it (verbal warning). It will be a hell of a case if he did not and if you prepared for a longer project starting next working day (Friday to Monday) then they need a really brutal argument to make - the judge, if it ever gets there, will NOT be amused. This is as abusive as it gets in German law. Remember, Germany is a country where you are not allowed to measure worker productivity on an individual level unless special circumstances apply.

It is NOT worth talking to the manager here - he is likely in violation of labor laws, and he will not take the position that he did something seriously wrong. Your lawyer can and will advise you, and it does not cost too much to consult with the lawyer. Anyhow, it should be covered by the legal insurance you should have. Talking to HR is only likely to result in delays, which may be negative - I'm not sure how much time you have, but it could be you only have 14 calendar days to oppose this documentation.

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    +1. Also, in Germany labour unions often provide legal advice and have lawyers on payroll for this kind of stuff so at least in the first instance you might not have to incur any personal expenses to get legal advice.
    – Konrad Rudolph
    Commented Aug 10, 2018 at 15:00
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    Germany is a country where you are not allowed to measure worker productivity on an individual level unless special circumstances apply. - Can you provide a reference for this. I think it will add considerable value to your already excellent answer.
    – IDrinkandIKnowThings
    Commented Aug 10, 2018 at 17:33
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    @IDrinkandIKnowThings Yeah, I definitely agree. An an american, as soon as I read that I was like "what?" and immediately googled it, but couldn't find anything.
    – default
    Commented Aug 10, 2018 at 20:06
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    Personal anecdote, I worked for a company that had licensed several 100 copies of a certain (expensive) software. IT department started evaluating licensing logs in order to get a better estimate of how many licenses were required. Even though the information never left the IT department, working with this program was only a small part of the job of everyone (so "how long are you using this" was not a measure of personal productivity), and the information was never held against any one employee, this cost the IT manager who made the decision his job. Company size ~ 30K employees.
    – Guntram Blohm
    Commented Aug 11, 2018 at 13:44
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    @nikie it's not private usage to look up work stuff.
    – DonQuiKong
    Commented Aug 13, 2018 at 6:56
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As this happened in Germany, I assume "written warning" means "Abmahnung".
This is serious, as this means the in future he might be legally fired for even rather minor stuff that would not justify a termination if it were a single event.
Therefore he really should consult with a lawyer, specialised in working laws ("Arbeitsrecht"), to evaluate how the company can be forced to withdraw it.

I am not a specialist, but in German working laws for filing a protest are rather short in time so he should do it now.

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    I think OP should clarify.
    – Sentinel
    Commented Aug 10, 2018 at 23:19
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    Given the broad skill set, I'm assuming the guy is not young and they might be pulling tricks to fire him, replace with someone younger and cheaper, or even trick him out of retirement benefits. Not sure how it works in Germany, but I find it hard to believe the manager did it because he genuinely believed the worker was being unproductive.
    – Arthur Tarasov
    Commented Aug 11, 2018 at 8:19
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    The "quite a large company" tidbit might as well mean the manager just moved to IT from a different department and has no idea how IT work is different from, say, packing parcels at amazon.
    – Guntram Blohm
    Commented Aug 11, 2018 at 13:48
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    @ArthurTarasov Not the case. THis is germany - retirement benefits work VERY different there. Generally there is no benefit for the company, excpet hiring an inexperienced guy for lower wage. Which is high risk - also because the market is EMPTY. But no, retirement benefits are not lost when fired, sorry.
    – TomTom
    Commented Aug 13, 2018 at 7:14
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Was the management in the right?

Absolutely not, this manager is making ridiculous claims

In a lot of IT departments/companies learning in your work time as long as you have other work done is classed as development and learning which you can never do enough of in the development field.

On top of this the manager was even made aware that there was nothing to be done, if they had such a problem with this then they should've said there and then or even allocated some work.

How can he best defend himself about it?

He can make a formal complaint and get all the evidence he had from that day, emails, information gathered etc and explain how it links to the upcoming project and ensure to provide proof that there was no work to be done.

If he doesn't want to take it that far then he can just pull his manager for a quick chat and query why he was given it.

In the future keep a log of emails and all things that may be used as evidence against any claims as such.

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    "If he doesn't want to take it that far then he can just pull his manager for a quick chat and query why he was given it." - While it's true he can do that, I think it's worth emphasising that he has a written warning on his record now, which will affect his future performance reviews and potentially his job security. Raising the issue informally will not fix that, even if it solves the actual managerial problem.
    – user81330
    Commented Aug 10, 2018 at 10:10
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    This is Germany and some places are hierarchical: depending on company culture, "looking busy" can be unwritten part of the job description as well as "don't make the manager look stupid". Given that company employs the "8 hours of your butt in our chair"-principle, most likely the first two hold, too.
    – Captain Emacs
    Commented Aug 10, 2018 at 10:17
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    Yeah, bu reading up on new technology for the next work day? Seriously? Arbeitsgericht. I would not eve ntalk to HR - I would offload that to a lawyer (which in germany is cheap) and then see what happens. This is wrongfull accusation.
    – TomTom
    Commented Aug 10, 2018 at 12:39
  • @TomTom: It's not for the next work day, according to the OP's description, but for a project 2 months ahead. Reading up on technology that is directly relevant for the person's job, nonetheless, so I fully agree with your conclusion. Plus, of course, IT people often cannot do much better at "looking busy" than reading technical documents.
    – O. R. Mapper
    Commented Aug 11, 2018 at 22:05
  • @CaptainEmacs "x hours but in chair" is so incredibly common in Germany that I wouldn't think it correlates much with bad management (looking busy or not criticising your manager over producing results). In fact, German culture is to be a lot more direct about potential problems and while you'd obviously try to point out the problem without making anyone look stupid, good managers would expect you to speak up if they made a mistake.
    – Sumyrda - remember Monica
    Commented Aug 12, 2018 at 20:56
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Ok, the first thing: Is it a Abmahnung or simply a complaint?

An Abmahnung is serious because it is one necessary step for the employer to fire someone. Trying to terminate a working relationship without serious offenses (theft, assault) and without Abmahnung is legally void. It is a Abmahnung if

  • The complained behavior is described in detail with date and time. It is NOT sufficient to claim "He comes late" or the "she works too slow". An example is "Worker X got a message at Thursday, August 9th 2018 16:14 that a server must be repaired and without any notice X disappeared before 17:10 before the end of the working time at 18:00".

  • The complained behavior must explicity say that this behavior was an offense and that continuing this behavior is not acceptable.

  • The employer must give the threat of firing the employee.

If those conditions are not met, it is not a Abmahnung, it does not matter the least if "Abmahnung" stands on the letter.

What is also interesting: Once a person behaves well for a longer period (months, years) and do the same behavior again, (s)he still cannot be fired because it is not proportionate to the offense.

Your friend does not need a lawyer, if he is fired later and your friend sues the employer, it is the employers task to prove that a Abmahnung was valid.

So what to do in the first case:

  • Never sign something if you cannot read it because it is in German and absolutely do not sign if the letter states that you acknowledged the wrong behavior.

  • Get as much evidence of the incident as possible. Time, date, what your friend was doing, witnesses, everything.

  • If the firm is big enough, it has a Betriebsrat, colleagues which are responsible to work together with the boss and have rights concerning changes in personnel (firing and hiring). Go with the collected evidence to the Betriebsrat and lodge a formal complaint. If the firm is too small to have a Betriebsrat, ask for a talk with the next level of management and the manager and tell your side of the story.

  • Every employee has a dossier about them, in German Personalakte. Once you leave the company, you can sue your employer to remove the wrong Abmahnung or force the employer to insert your counterstatement into the dossier.

You do not need a lawyer until you are fired. Once you are fired and you plan to sue your employer, absolutely nothing is lost. German law is quite friendly to employees, your lawyer can do nothing before a termination which (s)he cannot afterwards. Spare your money until it is necessary.

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    ...and it's always interesting to watch in which way exactly the employer obtained the "incriminating" data. Are there cameras, keyloggers, other performance measurement provisions? Then they are probably illegal, unless there is a "Betriebsvereinbarung" (employment agreement) clearly stating what is monitored, under which conditions, and to what precise valid purpose.
    – jvb
    Commented Aug 11, 2018 at 19:36
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    +1 This is the canonically correct answer for this kind of case in Germany. - You could add, that - if no Betriebsrat exists, yet, and the company has 5 or more employees, now would be the perfect time to looking into electing one. The German Betriebsverfassungsgesetz (BetrVG) is the legislation to read into for that.
    – I'm with Monica
    Commented Aug 13, 2018 at 12:29
  • @AlexanderKosubek Thats one way to completly and utterly sour any relationship with your bosses though, so exercise with care.
    – Magisch
    Commented Aug 22, 2018 at 10:41
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I suspect there is more to the story here, however one thing is very clear. Your friend's manager was unhappy with how he spent his time on Friday. While it seems your friend felt there weren't any priority tasks that needed attention, his boss clearly didn't agree.

This doesn't mean the boss is right or wrong, but your friend and his manager need to be on the same page. That the boss would write him up is an indication of one of two things: either the boss is a complete jerk, or this isn't the first time this has been an issue. In either case I believe the path forward is the same.

Your friend and his boss need to be on the same page.

He should be checking in with his boss as often as necessary to insure that everyone is in agreement about priorities and goals for the team. The level of trust between parties will play a part in deciding how often or detailed these check-ins need to be.

Your friend could:

  • call his boss in the AM each day to talk about what he is working on and to validate his understanding of the workload and priorities for the day.
  • send an email at the end of the day detailing what was accomplished today and what he hopes to accomplish tomorrow
  • stop in to the bosses office first thing to talk about the upcoming day

Your friend may or may not be comfortable with this level of involvement from his supervisor. If he is feeling micromanaged, it might be time to start looking for a new opportunity elsewhere.

(If this were me, boss and I would have likely had a heated disagreement face to face. Either we would have hashed it out and things would be good, or I'd be polishing up my resume and looking for a new opportunity.)

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    No, it is not. This is germany - not only had his manager an obligation to actually assign him work first and check that, "slacking off" is acutally not worth a written warning in the eyes of the court unless it is SIGNIFICANT. The manager could have just walked over AND HAD A LEGAL OBLIGATION TO DO THAT. SLacking off is only an offense for a written warning if it is substantial - which involed more than half aday wihich is slow.
    – TomTom
    Commented Aug 10, 2018 at 12:40
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    No. But he has a limited time by german law to challenge that warning and there are specialised lawyers for that. Failure ot do so nails it in his file. It is not the supervisor - he has to go against the company, which will then have to proove that this accusation is correct and the permanent entry in his work fole is justified.
    – TomTom
    Commented Aug 10, 2018 at 13:06
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    If it is Germany, and his manager is only obliged to actually assign work, and his manager failed to do so and covered his tracks of negligence by writing up his employee; I'd consider getting HR / legal / supervisors involved. The employee's job is not to take the fall for the supervisor that failed to distribute work.
    – Edwin Buck
    Commented Aug 10, 2018 at 14:12
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    A written warning is basically the strongest formal action there is, it is wrong and needs a strong formal reaction. Forget being on the same page, the manager was completely out of line here.
    – RemcoGerlich
    Commented Aug 10, 2018 at 14:29
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    His friend did all of that though.
    – user53651
    Commented Aug 10, 2018 at 21:01
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There are several very good answers here already.

I would add one point: the manager's behavior suggests he's after your friend. So I would be super careful with my behavior if I were him.

He should keep as many things as he can in writing. If he doesn't have anything to do, let him write an email to his manager asking for tasks. He shouldn't do it only verbally. Emails make things easier to prove. And obviously, print the emails out after sending them for documentation purposes.

And yes, he should start looking for a new job. Unless he's got a really super thick skin, working in such conditions can be very stressful and simply isn't worth it.

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