Employees have the right to a favorable evaluation
Dr. Britta Beate Schon
Britta Beate Schon is responsible for all legal topics at Finanztip. The doctor of law and lawyer worked as head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Previously, she taught and researched in Japan as a DAAD Junior Professor of German and European Law. She completed her studies in Munster, Geneva, Regensburg and Leipzig. You can reach the author at [email protected]
- Every employee has the right to a reference when he or she leaves the company.
- In the event of a change of supervisor, there is also a right to an interim reference.
- Employers use special reference language. Individual formulations correspond to school grades.
- Ask your employer for an interim reference when you get a new supervisor.
- Let you the reference always as draft give and examine exactly, how your employer evaluated your achievements.
- If you do not agree with the evaluations, ask your employer to improve them.
In this councellor
If things are no longer going well in your old job, or if you want to improve and develop professionally, it is time for a change. It starts with a good application. In addition to your resume, your references are among the most important application documents.
What must a job reference look like??
As an employee you have a right to a written reference (§ 109 GewO). This also applies to quasi-employees and freelancers.
Duty to fetch – Many employers automatically prepare a certificate for the departing employee upon termination of employment. If this is not the case, you must request your reference. The issuance of a certificate is a so-called "debt to be discharged" – your employer must provide you with the certificate not automatically issue, you could theoretically also do without it. However, this is not recommended, even if you have not parted on good terms. Because in the recruitment process you should be able to prove all your previous professional stations with appropriate certificates.
Form – The reference must be in printed form; your employer may not just send it to you by e-mail. A handwritten reference is also not permitted. The reference should be printed on proper business paper. You do not have to accept stains or wrinkled paper. It must be formulated "clearly and understandably" (§ 109 GewO). This means that no hidden secret language is allowed. The reference should include the following points:
- Heading: Employment reference
- Master data such as name, date of birth and place of residence
- Job description
- Assessment of your performance (willingness to work, skills and knowledge, working methods, work success, possible leadership skills)
- Assessment of your social behavior
- Reason for termination (the employee must agree)
- Acknowledgement (optional, but important)
- Signature of the superior and company data
Date – On the letter belongs the date of the day on which it was issued. Your employer is not allowed to pre-date or backdate the reference. If it is only issued after the fact – for example, because you only requested a reference some time after you left the company – the date of issue must also be used.
Signature – The employer must sign the reference, in the case of a GmbH therefore in principle a managing director, in the case of a corporation a management board. The employer may also have the certificate signed by a representative. This may be the direct supervisor or a human resources manager or personnel officer. Then, however, his function must be indicated in the reference and that he acts as a representative of the employer (LAG Schleswig-Holstein, decision from 23. June 2016, Az. 1 Ta 68/16).
Table with grades – It is not sufficient for an individual reference if the employer presents the job reference in tabular form like a school report (BAG, judgment of 27. April 2021, Az. 9 AZR 262/20).
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Simple or qualified reference?
The law distinguishes between a simple and qualified certificate (§ 109 GewO).
In the case of a simple employer’s reference the employer confirms only the Nature and duration the activity. This includes a precise description of what your tasks were and whether you took part in further training measures, for example. In a Qualified reference the employer describes not only the kind and duration of the activity, but evaluates in addition your Performance and your Conduct.
Important: You should always request a qualified reference, as it is much more meaningful. A new employer can get a quicker picture of you.
Qualified job reference
A reference must be truthful, therefore it must contain only facts. The employer is not allowed to praise you to the skies if your performance was not up to the mark. In contrast, it is also not permissible to evaluate you worse than the performance was.
Performance appraisal – Employers assess the employee’s performance based on the following evaluation criteria: Skills, knowledge, abilities, dexterity, and diligence, as well as dedication and attitude to work.
Behavioral assessment – The information about the behavior of employees assesses your relationship with co-workers and superiors and whether you have integrated yourself into the operational work process.
A reference must be benevolent. That means that the evaluation may not make the job search more difficult for you. An example: The employer may not mention warnings and what led to it, even if they led to the notice.
The Initial grade for a reference is the grade satisfactorily. If the employer issues you a reference with this grade and you do not agree with it, you have to prove that you deserved a better grade (BAG, judgment of 18 December 2006). November 2014, Az. 9 AZR 584/13). In contrast, your employer must have evidence that your work performance was really weaker in the case of a poorer reference.
Write a reference yourself
Some bosses make it easy for themselves and let the employee write a reference himself. If this applies to you, then you have the right to a better grade Chance, to write in what you would like to have in it. You should not praise yourself to the skies, but you should not be too modest either. Pay attention to the correct length for the testimonial. Five pages is too much and indicates that you probably drafted it yourself. A good reference should contain two pages get along.
When can you demand an interim report?
You have a right to an interim report if there is evidence for it good reason indicates. This is the case, for example, if your long-term supervisor leaves the company. Because after she has left, there may no longer be anyone who could competently assess your past performance (cf. BAG, judgment of 1. October 1998, Az. 6 AZR 176/97).
For the same reason, an employee has the right to request an interim report prior to parental leave. Finally, he does not know what circumstances he will find when he returns.
It is important that the employer to the evaluation of the intermediate testimony bound is. So he can’t just issue a much worse final reference later on. He may only deviate if the subsequent performance and behavior of the employee also justify this (BAG, judgment dated 16. October 2007, Az. 9 AZR 248/07)
How do you decipher the language of the report??
Job references often sound better than they are meant to be. The details are important. Unlike school or university reports, an employer’s reference does not contain any grades. According to the Federal Labor Court, they would also not be admissible (ruling of 27. April 2021, Az. 9 AZR 262/20). Because without continuous text, employers can neither individually nor differentiatedly evaluate what the employee has concretely done.
However, the written statements on the Simplification Translate into grades. "He has always made an effort" sounds good at first, but means that the person has shown commitment, but still has not done a good job. HR managers read this as a grade sufficient.
The following is an overview of various areas of assessment:
- Evaluation of the willingness to perform
Grade 1: It showed always a very high degree of initiative and willingness to perform.
Grade 2: She showed always a high Willingness to perform and attitude to duty.
Grade 3: You showed Commitment.
Grade 4: It also showed Committed.
- Evaluation of the work success and the way of working
Grade 1: He completed his tasks always with the utmost diligence and great accuracy
Grade 2: He completed his tasks always with great Diligence and accuracy.
Grade 3: He completed his tasks always with care and accuracy.
Grade 4: His tasks done it with diligence and accuracy.
- Evaluation of social behavior
Grade 1: His behavior towards superiors and colleagues was exemplary at all times.
Grade 2: His behavior towards superiors and colleagues was always impeccable.
Grade 3: His behavior toward superiors and colleagues was flawless.
Grade 4: His behavior towards colleagues and superiors was correct and without objection.
Grade 5: Needless to say, his conduct toward supervisors and colleagues is unencumbered was.
- Overall rating
Grade 1: His performance found always our fully Satisfaction.
Grade 2: Your performance was always our full Satisfaction.
Grade 3: His performance found our full Satisfaction.
Grade 4: Your performance was to our satisfaction Satisfaction.
Grade 5: He completed the tasks assigned to him as a rule to our satisfaction.
If a section is missing in the reference, this is to be evaluated like an embarrassed silence and comparable with mark 5. Important is however altogether, what the employer concrete on your activities in the company and on your development, so that the reference reflects as individual a picture of you as possible.
Termination reason – Often employers also write in the certificate how the employment relationship was terminated.
Termination by employee: He/she is leaving our company at his/her own request.
Termination by employer: The employment relationship ended on ..
amicable separation: The employment relationship ended on the best of terms for both parties.
Termination agreement on the initiative of the employer: We have separated amicably.
Final sentence and thank you formula
The following closing phrases are common: "We thank you for the good cooperation and wish Mr./Mrs . all the best for the future" or "We regret the departure of Mr./Mrs . ".
Good would also be "We wish her/him continued success" and not only "We wish her/him every success". Because this indicates that you have not been successful so far.
Entitlement to such a Final sentence However, according to the Federal Labor Court, employees do not have this right (ruling of 20. February 2001, Az. 9 AZR 44/00).
Anders judged the Dusseldorf Regional Labor CourtWithout a thank-you and future clause, a reference can be contradictory and incomplete. Since 97 percent of all job references contain a clause with good wishes for the future, it has a negative effect if such a clause is missing, especially in an otherwise good reference. In these cases, the employee can have the certificate corrected, the court ruled (12. January 2021, Az. 3 Sa 800/20).
Similarly sees it Regional Labor Court in MunichAs an employee, you can demand a closing sentence, but the thank-you formula must fit in with the overall assessment. A claim that the reference states, the employer regret the departure of the employee, exists only in case of very good testimony. A good evaluation only justifies a concluding sentence with the content "We thank you for the work you have done and wish him all the best for the future" (cf. LAG Munich, judgment of 15. July 2021, Az. 3 Sa 188/21).
What to do if you don’t agree with the testimonial?
If you have discovered unsuitable formulations in the reference or if your employer should add something or evaluate you better, then ask him friendly for correction. You do not have to accept the first draft. You can also suggest changes and concrete formulations, but you cannot demand them. So that you do not wait forever, you should set him a deadline of two weeks for the revision.
If the employer does not comply with your wishes, you can sue for correction before the labor court. If the employer refuses to issue you a reference, you can also file a lawsuit. Before doing so, it is best to seek legal advice from a trade union or other professional body of which you are a member, or from a lawyer.
Costs – The court and attorney’s fees are based on the amount in dispute. If an employee sues for a qualified reference, the amount in dispute is one month’s salary. Example: Do you earn in the month 4.500 euros and sue for a certificate, then court costs of 322 euros are incurred; the lawyer’s fees amount to around 1.000 Euro (as of October 2021).
Caution: Even if you win the lawsuit, you generally bear your own attorney’s fees (§ 12a ArbGG). So they will not be reimbursed by the opponent if you win the case.
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