Every employee is entitled to a written reference upon termination of employment. In accordance with Section 109 of the German Industrial Code (GewO) or for trainees in accordance with Section 16 of the Vocational Training Act (BBiG), the reference must at least contain information on the duration and type of activity (simple reference). At the employee’s request, the information must also cover performance and conduct (qualified reference).
In principle, the right to receive an employment reference only arises upon termination of the employment relationship. Particularly in the case of longer notice periods, the problem arises that the employee has already been given notice of termination months before the end of the employment relationship. In order not to disadvantage the employee in such a case, there is generally a right to a provisional reference, the so-called interim reference, during the existing employment relationship. It should be noted that the interim reference does not replace the final reference and the wording from the interim reference does not have to be included in the final reference. The interim reference is often worded particularly positively to make it easier for the employee to find subsequent employment and to prevent any disputes.
The certificate must be issued in writing and signed. It may not be issued in electronic form, for example by e-mail or fax. The external form must be impeccable. Durable paper of good quality with a current company letterhead must be used. The certificate must be clean and neatly written and must not contain any stains, erasures, improvements, deletions or similar. For example, the employee may reject a reference written in pencil only. As a general rule, the reference should not be folded, as this could prevent the required impeccable form. The Federal Labor Court has rejected an employee’s right to an unfolded reference, provided that the fold is not visible on a copy of the reference. It is therefore recommended that the reference be placed in a reinforced (A4) envelope to ensure its integrity.
As a rule, the certificate must be signed by the issuer. The employer itself, managing directors, plant or department managers or authorized signatories are the most likely signatories. It is important that it is clear from their status that they are senior to the employee for whom they are issuing the reference. In addition, their power of representation should be indicated by appropriate additions (e.g. i.V.).
The date stated on the certificate should generally correspond to the last day of employment. This applies even if the certificate was actually issued earlier or later. A deviation of the date of issue from the date of termination of the employment relationship can be interpreted by third parties as a sign of problems between the employee and the employer following the termination. Deviations from this principle only arise if the employee only requests the certificate several weeks or months after leaving the company.
In principle, it is the sole responsibility of the employer to draw up the reference. Furthermore, the employee is not entitled to use certain formulations. On the other hand, the reference must also meet certain content requirements. The principles of benevolence, truthfulness and clarity apply.
The principle of completeness and individual assessment also applies.
The reference must contain all essential facts and assessments of the employee’s performance and conduct that are important and necessary for a meaningful overall assessment. The reference must also address the employee’s individual professional development. Job-specific, job-related and personal characteristics must be taken into account. The assessment of performance and conduct must always be formulated individually.
The principle of the duty of benevolence does not mean that the employee should only be given a positive reference. It only means that no obstacles should be placed in the employee’s further career path. This is particularly relevant in the event of a poor personal relationship between employer and employee. In this respect, it should be noted that the employee is regularly only entitled to an “average” reference. According to case law, this means a reference with the grade “satisfactory”.
Excessively benevolent wording, unless it is justified by the employee’s far above-average performance, is also precluded by the principle of the truthfulness of the reference. A true assessment in this sense means that the employer is obliged to state only facts in the reference and to describe their own impressions of the employee. Assumptions, allegations and, where applicable, interpretations of behavior are prohibited. In addition, the entire employment relationship must be described and not just certain parts of it.
The principle of clarity of the reference (Section 109 (2) GewO) stipulates that the reference must be formulated clearly and comprehensibly. In principle, it may not contain any features or formulations that are intended to make a statement about the employee that is not apparent from the external form or wording. For example, sentences that are usually included may not be omitted or self-evident facts may not be described, as this could lead to confusion on the part of the reader. An example of this would be a statement about the honesty of a bank employee or the cleanliness of a beautician.
Despite the clarity required by law, a so-called “certificate code” has developed in practice. For example, the phrase “has generally met our expectations” indicates poor performance. The phrase “has always made an effort” is also commonly used to express that the employee has, in the opinion of the employer, shown completely inadequate performance in the relevant area.
In practice, it is increasingly common for employers to allow employees to write their own references, which are then countersigned by the employer. Such a procedure has been recognized as permissible by the labour courts. The obvious advantage is that the content requirements are met and any disputes can be completely avoided. Nevertheless, we recommend that the reference be checked by a lawyer before it is signed by the employer, as liability towards third parties may arise if the content of the reference is breached and the employer ultimately issues such an incorrect reference. Our lawyers, who specialize in this area of law, will be happy to advise you at any time and point out any liability risks.
There is no actual entitlement to a correction of the certificate. This is because the entitlement to the issue of a reference is deemed not to have been fulfilled until the employer issues a correct reference. Such a corrected reference must show the date of termination of employment as the date of issue, even after a legal dispute that may last for months. This ensures that a potential employer who reads the reference will not become aware of the legal dispute. Consequently, any reference in the reference to the legal dispute is also prohibited. In the context of the legal dispute, the labor courts are authorized to review the entire reference and, under certain circumstances, to reformulate it themselves or to prescribe appropriate wording for the employer.
Precisely because of the “certificate code”, we recommend comprehensive legal advice beforehand to ensure that the wording you choose does not end up meaning something completely different than intended or assumed.
Our lawyers from the “Employment Law Team” in Dresden are available to provide you with comprehensive and competent advice on this topic at any time.
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