Definition and significance of disciplinary measures
In the legal system, disciplinary measures refer to specific sanctions or regulatory measures imposed to enforce service or employment obligations. They serve to maintain order within certain institutions, such as the civil service, the armed forces, schools, or other organizations with disciplinary authority. The aim of disciplinary measures is to sanction misconduct or breaches of applicable duties, uphold trust in the proper fulfillment of tasks, and prevent future violations.
Legal basis of disciplinary measures
Disciplinary measures in the public sector
In the public sector, the disciplinary laws of the respective federal states and the federation serve as the legal basis for disciplinary measures against civil servants. Central to this is the Federal Disciplinary Act (BDG), which defines the framework for sanctioning breaches of official duty at the federal level.
Requirements and procedure of disciplinary proceedings
- A disciplinary measure fundamentally requires the existence of a breach of official duty.
- The disciplinary procedure is divided into the administrative and judicial proceedings.
- Within the scope of the administrative disciplinary proceedings, it is examined whether a culpable violation has occurred and what sanction is appropriate.
- The affected person is entitled to be heard and may appeal against a decision.
Types of disciplinary measures in the public sector
According to the BDG, various disciplinary measures are available, graded by severity and effect:
- Reprimand
The reprimand is the mildest form of measure and represents a formal disapproval.
- Fine
The fine has a stronger punitive character and results in a financial penalty.
- Reduction of salary
This is a temporary reduction of the monthly salary.
- Demotion
In cases of serious breaches of official duty, a demotion to a lower salary bracket may occur.
- Removal from civil service
This is the most severe disciplinary measure and results in the termination of the civil service relationship.
Limitation period for disciplinary measures
Specific statutes of limitations apply to the prosecution of breaches of official duty. The BDG provides for a limitation period of five years, beginning at the time of the breach.
Disciplinary measures in employment law
Disciplinary measures also exist in employment law, where primarily the employer’s right to issue instructions pursuant to § 106 Trade Regulation Act (GewO) is decisive. These measures serve to enforce contractual obligations.
Typical disciplinary measures under employment law
- Warning
The warning is arguably the most common disciplinary measure in employment law. It documents a breach of duty, calls for improved future conduct, and can provide grounds for further action such as termination.
- Transfer
A transfer may be considered as a measure to restore operational order, provided it occurs within the scope of the employer’s right of direction.
- Dismissal for conduct-related reasons
If a warning is unsuccessful, dismissal for conduct-related reasons may be imposed as the final disciplinary measure.
Disciplinary measures in other areas of law
Disciplinary law for soldiers
For soldiers of the Bundeswehr, the Soldiers Act (SG) applies. Disciplinary offenses pursuant to § 23 SG are sanctioned here, with possible disciplinary measures ranging from a simple reprimand to reduction in rank or removal from service.
Disciplinary measures in school law
School law disciplinary measures serve to maintain order and generally require disorderly conduct or breaches of school regulations. Common sanctions include reprimands, detention, suspensions, or in severe cases, expulsion from school.
Disciplinary measures in professional chambers
In chambers and associations, breaches of duty may result in professional measures such as admonishments, fines, or temporary professional bans to protect trust in the practice of the profession.
Legal protection against disciplinary measures
There is a right to effective legal protection against disciplinary measures. Those affected have recourse to administrative or labor courts:
- In civil service law: Disciplinary actions before administrative courts
- In employment law: Actions before labor courts, particularly in cases of summary dismissal or invalid warnings
- In military law: Appeal to the military service courts
- In school law: Appeal of disciplinary measures in administrative court proceedings
Distinction from criminal measures
Disciplinary measures fundamentally differ from criminal sanctions. While disciplinary measures are specifically intended to maintain order within institutions, criminal law prosecutes violations that have societal relevance. For the same set of facts, however, criminal prosecution may also be possible in addition to disciplinary action.
Purpose and importance of disciplinary measures
Disciplinary measures pursue the dual aim of sanction and prevention. Consistent enforcement is intended, on the one hand, to ensure necessary order and, on the other hand, to set an example for future lawful conduct. The appropriateness and proportionality of any measure must be assessed on a case-by-case basis, with milder means to be given priority.
Literature and sources
- Federal Disciplinary Act (BDG)
- Soldiers Act (SG)
- State Disciplinary Acts
- Federal Labor Court: Decisions on warnings and dismissals
- State school laws
Disciplinary measures are a central instrument for ensuring lawful conduct and maintaining trust in state and professional institutions. The legal regulations ensure a balanced protection of the individuals concerned and the general public.
Frequently Asked Questions
What legal requirements must be met to impose a disciplinary measure against an employee?
Numerous legal requirements must be met in order to lawfully impose a disciplinary measure against an employee. Firstly, it must be determined whether the employee has actually violated an employment obligation. The specific breach being alleged must be clearly stated and provable in the individual case. Furthermore, the disciplinary measure must be proportionate, meaning it must not be disproportionate to the seriousness of the misconduct. The employer is also obligated to observe the principle of hearing: before the measure is imposed, the employee must be given the opportunity to comment. In companies with a works council, codetermination under § 87 para. 1 no. 1 of the Works Constitution Act (BetrVG) must be observed, i.e., the disciplinary measure must be coordinated with the works council. Additionally, any collective bargaining or individual contractual special provisions that may impose further requirements must be taken into account. Finally, statutory limitation and exclusion periods must be adhered to, within which the measure must be imposed; after these deadlines expire, sanctioning is generally excluded.
What codetermination rights does the works council have in relation to disciplinary measures?
The works council has a mandatory codetermination right under § 87 para. 1 no. 1 BetrVG regarding the introduction and application of disciplinary measures, which in particular include warnings, transfers, and employer instructions with a punitive character. The employer is obligated to inform the works council in a timely and comprehensive manner about intended measures and obtain its consent. If no agreement is reached, the conciliation committee may be called upon, whose decision either enables or prohibits the measure. Without the required codetermination, any disciplinary measure imposed by the employer is ineffective; affected employees may then successfully contest its legality. Moreover, the works council has the right to demand removal or cessation of the measure in case of violations of codetermination, even after the fact.
What types of disciplinary measures are legally permissible?
Legally permissible disciplinary measures range from verbal or written warnings, to formal admonishments, to transfers, reductions of voluntary special benefits, and finally (extraordinary or ordinary) termination. The selection of the measure is guided by the principle of proportionality and the relevant legal framework under employment law. Particularly severe sanctions, such as salary reductions or terminations, are subject to strict legal requirements and must be justified by repeated or particularly serious breaches of duty. Notably, measures such as disciplinary punishments (e.g., fines or Tonio) are generally inadmissible under German employment law unless expressly provided for by collective agreement or works agreement and have a clear legal basis.
What rights do employees have against unlawful disciplinary measures?
Employees who are affected by disciplinary measures that are unlawful from a labor law perspective can take legal action against them. They are entitled to submit a counterstatement to their personnel file and request removal of the measure, for example, if it was unfounded, disproportionate, or imposed without proper hearing. In the case of warnings or other severe measures, there is also the option to file a claim before the labor court for removal from the personnel file. In the event of dismissal, an action for protection against dismissal can also be filed. Furthermore, the works council can be involved both for support and for protection against repeated breaches of duty by the employer. In some cases, employees can also claim damages, particularly if the measure demonstrably caused disadvantages for the employee.
What deadlines must be observed with respect to disciplinary measures?
Deadlines for both the imposition and the challenge of disciplinary measures by the employee must be observed. The employer must impose a disciplinary measure promptly upon learning of the misconduct to maintain its association with the breach (‘principle of immediacy’). Otherwise, the measure may be ineffective on these grounds alone. There is no statutory period for warnings, but excessive delay should be avoided. In cases of dismissal, the deadlines set out in § 626 BGB (two weeks after gaining knowledge of the reason for termination for summary dismissals), as well as any collective or individual contractual provisions, must be observed. If the employee wishes, for example, to request removal of a warning from the personnel file, there are usually no statutory exclusion periods, but the request should be made promptly to avoid difficulties in proving the facts.
To what extent can disciplinary measures be regulated by collective bargaining agreements or works agreements?
Collective bargaining agreements and works agreements may form the basis and framework for the admissibility and structure of disciplinary measures in the workplace. They may determine which measures are permitted, how the procedure should be conducted in each case (e.g., hearing, involvement of the works council, inspection of records), and what legal remedies are available to affected employees. Such collective regulations go beyond the law and bind both employers and employees. Deviation from collectively agreed requirements is generally not permitted and leads to the ineffectiveness of inadmissible measures. Special attention must be paid to so-called internal company sanctions specified in collective agreements, such as warnings, transfers, or fines, whose admissibility and legally secure application derive exclusively from the applicable collective agreement or the specific works agreement concluded.
