September 01, 2023
Pursuant to section 109(1) sentence 1 of the Trade, Commerce and Industry Code, employees are entitled to a written reference upon termination of their employment. The certificate serves the employee as a basis for job applications and informs future employers about the applicant and his/her work performance to date.
Pursuant to section 109(1) sentence 2 of the Trade, Commerce and Industry Regulation Act, the reference must at least contain information on the type and duration of the activity - in which case it is a simple reference - and, if requested by the employee, also on performance and conduct - in which case it is a qualified reference. In order to fulfil the above-mentioned purposes, the certificate must contain correct and complete information and the employer must provide a minimum guarantee of the content to future employers.
The entitlement to a certificate may expire after the expiry of a preclusive period under a collective agreement or employment contract if its effect is also to extend to the entitlement to a certificate. The entitlement to a certificate becomes time-barred three years after the end of the year in which it arose. The claim may be forfeited if it has not been exercised for a longer period of time (according to case law 5 to 15 months depending on the circumstances of the individual case), the employer is thereby convinced that the employee will no longer assert his right and the fulfilment is unreasonable for the employer.
Managing directors and other self-employed persons working under a contract of employment (section 630 BGB) and trainees (section 16 BBiG) also have a corresponding legal right to a certificate.
In addition to the described reference at the end of the employment relationship, the employee may also be entitled to the issue of a so-called interim reference from the employer's general duty of care. The basis for this is a justified interest of the employee, which can be affirmed, for example, in the case of a change of superior, a change of duties, parental leave, a transfer of business or a prospective dismissal, but also the intention to look for jobs and to explore one's own market value. However, it is disputed whether the employee must disclose his or her legitimate interest.
Content of the claim
The requirements for the content of the entitlement to a reference have been developed extensively and in detail by case law.
With regard to the formal requirements, an appropriate external form is required, in particular the certificate must be issued in writing, usually on standard business paper and typewritten, and must be signed by the employee's own hand. It should contain a date of issue - in the case of a certificate of termination, the date of the last day of work - and refer to the specifically identified employee with full name and, if applicable, academic titles. The employee may demand that external defects of the certificate, such as dirt and tears, be corrected and also that legal spelling mistakes be corrected. In addition, the employee can demand that the certificate be handed over "crease-free", i.e. without creases in the paper indicating that it was sent by post.
The contents of the reference include all facts that are essential for the hiring decision of a potential future employer. It must relate to the entire period of employment and exclusively to the responsibilities and activities actually assumed by the employee and must not only include performance but always an assessment of it. When assessing the performance, the employer basically has a wide margin of appreciation, whereby the point of view of a benevolent, reasonable employer who bases the assessment on facts is decisive.
In addition to completeness and accuracy of content, the reference must also comply with the principles of consistency and clarity: According to the legal provision in section 109(2) of the Trade, Commerce and Industry Code, it must not contain any statements or features that contradict the wording of the reference. Inadmissible are unclear formulations which are intended to assess the employee differently than is evident from the wording of the certificate, because if it follows from the wording that the employer distances himself from the wording of his statements and thus assesses the employee less favourably, the certificate is "wrong" in terms of content. The standard for such inadmissible formulations is the understanding of the average parties involved in the group of persons addressed by the reference, namely an objective and thus unbiased employer with knowledge of the profession and the industry, and how the employer must understand the reference and the formulations contained therein.
A special "technical language" has developed for the formulation of the employee's evaluation: according to this, due to the duty of a benevolent evaluation, evaluation texts are generally formulated positively, but graded according to the corresponding grade:
very good (1)
three gradations - positive adjective as superlative + always:
"always very good/excellent, extremely, absolutely"
usually two intensives - positive adjective + very/always:
"always good" or "very good"
one increment - with positive adjective:
without positive adjective (simple form)
Restriction e.g. "for the most part"
"has not done justice to assigned tasks"
In this way, the performance areas of willingness to work, ability to work, method of working (quality of work, reliability, negotiating skills, speed of work) and success in work (quantity of work and work results) as well as conduct are usually assessed in the report. The assessment usually ends with a summarising overall assessment (final mark).
The following formulations are common for the overall assessment:
Very good: "has always covered the scope of duties assigned to him/her to our fullest satisfaction"; "his/her performance has always been very good".
Good: "has always performed the tasks assigned to him/her to our full satisfaction"; "his/her performance has always been good".
Satisfactory: "has performed the tasks assigned to him/her to our full satisfaction"; "his/her performance has always been satisfactory".
Sufficient: "has fulfilled the tasks assigned to him/her to our satisfaction"; "his/her performance has always been sufficient".
Poor: "has performed the tasks assigned to him/her to our satisfaction on the whole"; "his/her performance has been poor".
Unsatisfactory: "has made an effort to complete the tasks assigned to him/her to our satisfaction"; "his/her performance has been insufficient".
Similar to the wording of the evaluation, linguistic patterns have emerged that are hardly recognisable to the layperson as indicating a negative evaluation in the report. An example of this is the use of a negated antithesis in particularly poor evaluations: "He was not unreliable". means that the employee was unreliable.
Furthermore, in the case of poor evaluations, relativisations of an actually positive sentence are usually expressed by the use of certain key words (endeavoured, anxious, interested, as a rule, on the whole): "He/she was anxious,..." or "He/she always received the work instructions with interest."
In the case of ambiguous formulations, it depends on the assessment in the rest of the reference: for example, "self-confident appearance" in an otherwise good reference can be a positive indication of the employee's confident manner of reasoning, while the same in an otherwise below-average reference can attribute problematic behaviour to the employee. Very briefly formulated sentences, especially if clustered within the reference, indicate a poor evaluation and low esteem for the employee. If, for example, only "He/she was reliable." is evaluated, the context, such as the manner and the area of reliability, is missing, so that a merely sufficient evaluation must be assumed.
Contradictions within the reference are an indication of the concealment of a negative evaluation, negative sentences always weigh more heavily. Contradictory statements within a sentence drag the rating down to a lower level. If self-evident activities and characteristics are particularly emphasised, this corresponds to a negative evaluation, since obviously nothing else could be said about the employee, e.g. "He/she always had very good conversations with the staff."
If evaluations on certain areas that would be common (for the specific job/position) are simply omitted, the impression is created that problems in this area are to be concealed, which ultimately corresponds to a negative evaluation. This is the case, for example, if behaviour towards superiors or customer contact is simply not assessed in the case of a field worker.
The concluding sentence ending the reference usually contains a reference to the circumstances of the termination, thanks, regrets and wishes for the future. According to the case law of the Federal Labour Court, the employee is not entitled to the expression of regret or good wishes for the future. However, a corresponding formulation can be agreed, for example, in a termination agreement as part of the employer's obligations. The final sentence may be worded as follows, depending on the overall assessment.
Very good overall assessment:
"... is leaving our company at his/her own request. We regret his/her decision very much, as we are losing a valuable employee with him/her. We thank him/her for his/her cooperation in our company and wish him/her continued success and all the best personally."
Good overall rating:
"... is leaving our company at his/her own request. We regret his/her decision, thank him/her for his/her cooperation in our company and wish him/her continued success and personally all the best"
Average overall rating:
"... is leaving our company at his/her own request. We thank him/her for his/her cooperation and wish him/her all the best for the future."
sufficient overall rating:
"... is leaving our company at his/her own request. We wish him/her all the best for the future."
unsatisfactory overall assessment:
"... is leaving our company at his/her own request. We wish him/her good luck for the future".
If the contents of the reference do not meet the requirements, the employee can demand that the reference be corrected or supplemented. According to the case law of the Federal Labour Court, this right to a correction may be forfeited if it has not been asserted for 10 months. Do you need advice on individual formulations of a reference? Then arrange an initial meeting with us.