Reference letter (labour law)
May 09, 2023
Under Section 109(1) sentence 1 of the Gewerbeordnung, employees are entitled to a written reference upon termination of employment. The reference serves the employee as a basis for job applications and informs prospective employers about the applicant and his or her past performance.
According to Section 109(1) sentence 2 of the Trade, Commerce and Industry Regulation Act, the reference must at least contain information on the nature and duration of the employment - in which case it is a simple reference - and, if the employee so wishes, 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 its content to future employers.
The right to a certificate may lapse after the expiry of a preclusion period under a collective agreement or employment contract if the effect of the agreement or contract is to extend to the right to a certificate. The right to a certificate lapses three years after the end of the year in which it arose. The right can 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 convinced that the employee will no longer assert the right, and it is unreasonable for the employer to fulfil the obligation.
Managing directors and other self-employed persons working on the basis of a contract of employment (Section 630 BGB) and trainees (Section 16 BBiG) also have a similar legal right to a certificate.
In addition to the above-mentioned reference at the end of the employment relationship, the employee may also be entitled to a so-called interim reference as part of the employer's general duty of care. This is based on a legitimate interest on the part of the employee, which can be demonstrated, for example, in the case of a change of supervisor, a change of job, parental leave, a transfer of the business or an impending dismissal, but also in the case of an intention to look for a new job and to find out one's own market value. However, it is controversial whether the employee has to disclose his legitimate interest.
Content of the claim
The requirements for the content of the request for a reference have been developed extensively and in detail by case law.
In terms of 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 signed by the employee's own hand. It should include 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 by full name and academic title, if applicable. The employee may request that any external defects of the certificate, such as stains or tears, be corrected and that any spelling mistakes be corrected. The employee may also request that the certificate be delivered "crease-free", i.e. without any creases in the paper indicating that it has been sent by post.
The content of the reference includes all the facts that are relevant to the recruitment decision of a potential future employer. It must relate to the entire period of employment and only to the responsibilities and activities actually carried out by the employee, and must include not only performance but always an assessment of it. In general, the employer has a wide margin of discretion in assessing performance, although the viewpoint of a benevolent, reasonable and fact-based employer is relevant.
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 that are intended to assess the employee differently from the way the certificate is worded, 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 member of the group of persons addressed by the reference, namely an objective and thus impartial employer with knowledge of the profession and the industry, and how the employer must understand the reference and the formulations contained therein.
A special "jargon" has developed for the formulation of the employee's evaluation: according to this, the obligation to give a favourable evaluation means that evaluation texts are generally formulated in a positive way, but graded according to the corresponding grade:
very good (1)
Usually three levels - positive adjective as superlative + always:
"always very good/excellent, extremely, absolutely".
Usually two gradations - positive adjective + very/always:
"always good" or "very good"
one intensifier - with positive adjective:
without a positive adjective (simple form)
Restriction, e.g. "mostly"
"has not done justice to the tasks assigned".
In this way, the report usually assesses the following areas of performance: willingness to work, ability to work, way of working (quality of work, reliability, negotiating skills, speed of work), success in work (quantity of work and results of work) and behaviour. The evaluation usually ends with a summarising overall assessment (final mark).
The following wordings are common for the overall assessment:
Very good: "has always handled the tasks assigned to him/her to our complete satisfaction"; "his/her performance has always been very good".
Good: "has always carried out the tasks assigned to him/her to our full satisfaction"; "his/her performance has always been good".
Satisfactory: "has performed the duties 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 endeavoured to complete the tasks assigned to him/her to our satisfaction"; "his/her performance has been unsatisfactory".
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.
In addition, the use of certain key words (e.g. endeavoured, anxious, interested, generally) in bad appraisals tends to qualify an otherwise positive sentence: "He/she was anxious to..." or "He/she always followed 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 may be a positive indication of the employee's confident way of reasoning, whereas the same in an otherwise below-average reference may attribute problematic behaviour to the employee. Very short sentences, especially if they are clustered within the reference, indicate a poor assessment and low regard for the employee. If, for example, only "He/she was reliable..." is evaluated, the context, such as the manner and area of reliability, is missing, so that a merely sufficient evaluation can be assumed.
Contradictions within a reference are an indication that a negative evaluation is being concealed; negative sentences always weigh more heavily. Contradictory statements within a sentence pull the rating down to a lower level. Emphasising self-evident activities and characteristics is a negative evaluation, as it is obvious that nothing else could be said about the employee, e.g. "He/she always had very good conversations with the staff".
Omitting comments on certain areas that would be normal (for the specific job/position) gives the impression that problems in this area are being concealed, which is ultimately a negative evaluation. This is the case, for example, when behaviour towards superiors or customer contact is simply not assessed in the case of a sales representative.
The final sentence of the reference usually contains a reference to the circumstances of the dismissal, thanks, regrets and wishes for the future. According to the case law of the Federal Labour Court, the employee is not entitled to an expression of regret or good wishes for the future. However, such wording can be agreed, for example, in a termination agreement as part of the employer's obligations. Depending on the overall assessment, the final sentence can be worded as follows
Very good overall performance:
"... is leaving our company at his own request. We very much regret his decision, as we are losing a valuable employee. We thank him/her for his/her contribution to our company and wish him/her continued success and all the best for the future.
Good overall rating:
"... is leaving our company at his own request. We regret his/her decision, thank him/her for his/her cooperation in our company and wish him/her continued success and all the best personally".
Average overall rating:
"... is leaving our company at his own request. We thank him/her for his/her cooperation and wish him/her all the best for the future".
Satisfactory overall rating:
"... is leaving our company at his/her own request. We wish him/her all the best for the future.
Unsatisfactory overall rating:
"... is leaving our company at his/her own request. We wish him/her all the best for the future".
If the content of the reference does not meet the requirements, the employee can request that the reference be corrected or supplemented. According to the case law of the Federal Labour Court, this right to correction can be forfeited if it is not asserted within 10 months. Do you need advice on the wording of a reference? Then arrange an initial consultation with us.