Especially in the case of the termination of an employment relationship, many employees require advice from an Lawyer in labor law on the question of whether they have a claim to the issuance of a Employment testimonial have and if so, what exactly this must look like. We therefore want to be Lawyers for labor law explain below how a Employment reference must look.
1. The right to a reference in employment law
An employee’s entitlement to a written reference is derived from Section 109 para. 1 sentence 1 GewO. For apprentices the certificate claim is regulated in § 16 BBiG.
a) Issuer of the reference
The employer must issue the reference. He may use a representative for this purpose. The representative must, however, be of higher rank than the addressee of the reference – as is evident from the reference (BAG 04.10.2005 Az. 9 AZR 507/04). The rank of the representative who signed the reference is significant because it allows conclusions to be drawn about the employee’s esteem in the company. Therefore, if the employer’s representative signs the reference, it must be made clear that the representative was authorized to give instructions to the employee. For this purpose, it is necessary to indicate the representative relationship and the function by an addition to the name. In order not to give the impression that the issuer of the testimonial is distancing himself from it, he must sign the testimonial personally.
In the event of a transfer of an undertaking, the acquirer of the undertaking must issue a reference for the entire period of the employment relationship. For this purpose, he has a right to information against the seller of the business. If the employee received an interim reference prior to the transfer of the undertaking, the acquirer of the undertaking is bound by the assessment in the interim reference if no other assessment is justified by the subsequent conduct (BAG 16.10.2007 Az. 9 AZR 248/07).
b) Date of issuance of the certificate of employment
The claim to the issue of an employer’s reference arises in the case of the Termination of the employment relationship and is due immediately. The employee can therefore demand a final reference on his performance and conduct at the latest at the end of the notice period. However, the employee can also demand the reference after the termination (BAG 27.02.1987 Az. 5 AZR 710/85). The employer may designate a reference issued before the expiry of the notice period as an interim reference if changes can still be made to the reference.
However, the employee has the right to choose between a simple and a qualified reference. Therefore, the claim to the issuance of a reference by the employer can only be fulfilled when the employee has exercised his or her right of choice. The employer is only in default of issuing the reference if the employee has issued a reminder after the reference has not been issued (BAG 12.02.2013 Az. 3 AZR 120/11).
c) Interim reference
The employee may also demand an interim report if he has a substantial reason to do so. Reasons that may justify the issuance of an interim report may be if a termination is to be expected or the supervisor changes (BAG 01.10.1998 6 AZR 176/97). The claim to the issuance of an interim report may also arise if the employment relationship is to be suspended for a longer period of time, the activity is significantly changed or a transfer of business takes place. The intermediate reference has to correspond to the same form as the final reference. The employer is bound to the evaluation in the intermediate report insofar as he may not change the evaluation in the final report with unchanged evaluation basis. The employer may therefore only deviate from the content of the interim report in the final report if this is justified by the employee’s subsequent performance (BAG 16.10.2007 Az. 9 AZR 248/07).
d) Fulfillment of the right to award a certificate
The right to a reference shall expire if the employer has properly issued the reference in terms of form and content. If the certificate is lost by the employee, he cannot demand a new original from the employer. The employee can then only demand a duplicate of the reference from the employer. If costs are incurred, these are to be reimbursed by the employee.
If the employer fails to issue a certificate in the proper form and content, the employee or his or her legal representative may demand a new original Attorney The right to an employer’s reference in employment law can also be claimed in court.
e) Limitation, forfeiture and preclusion periods
The claim for issuance of the employer’s reference is subject to a limitation period of three years. The claim to the issuance of a qualified job reference can be forfeited beforehand if the employee has not asserted it within a reasonable period of time after the termination of the employment relationship and a trust worthy of protection has arisen for the employer that the employee will not assert it again (BAG 16.10.2007 Az. 9 AZR 248/07). The right to a correction of a reference may be forfeited if the employee does not assert his or her disagreement with the reference until 10 months after a qualified reference has been issued. A simple employer’s reference can be demanded as long as the documents about the employment are kept in the company.
The entitlement to a reference is also subject to preclusion periods under collective bargaining agreements (BAG 04.10.2005 Az. 9 AZR 507/04). This is the case if the forfeiture clause also covers claims that arise upon termination of the employment relationship (e.g., the right to a certificate of employment).B. § 37 para. 1 TVoD).
f) Non-conditionality and debt to be discharged
The issuance of a certificate is a Holschuld (BAG 08.03.1995 5 AZR 848/93). The employee can therefore not demand that the reference be sent to him. Rather, he must pick up the reference at the workplace.
The right to receive an employer’s reference is indispensable. It cannot be excluded or waived for the future. A compensation receipt does not therefore also cover the right to a reference.
g) Form of the employer’s reference
The employer’s reference is in writing to be issued and signed. As a rule, the certificate will only be properly issued if it is written on a company sheet (BAG 03.03.1993 Az. 5 AZR 182/92).
The employer’s reference must include a date of issue and be signed personally by the issuer. A corrected certificate shall be backdated to the original date of issue. A certificate signed only with a pencil, or a stained and unclean certificate is not proper (BAG 03.03.1993 Az. 5 AZR 182/92). Likewise, the reference must not contain spelling mistakes.
2. The content of the reference
The content of the reference depends on whether the employee requires a simple or a qualified reference. However, every employer’s reference must comply with the principle of goodwill and the principles of truthfulness and clarity of the reference.
a) Simple reference
If the employer’s reference merely fulfills the requirements set out in § 109 para. If the reference does not contain the minimum requirements regulated by § 1 sentence 2 GewO, i.e. if it only contains information about the type and duration of employment as well as the surname, first name and occupation of the employee, then it is referred to as a simple reference. This serves mainly as a document proving employment and therefore has the character of a certificate.
The type of employment must be described in such detail that third parties can form a picture of this. For this purpose, the assigned jobs, managerial powers and, if applicable, the duties to be performed must be specified. Further training measures to be named.
In the case of the duration of the employment relationship, the legal existence must be indicated. If the employment relationship ends with the receipt of an extraordinary notice of termination, this date must be certified in the reference as the date of termination. The process employment of the employee does not change this (BAG 14.06.2016 Az. 9 AZR 8/15).
Shorter interruptions of the work activity, such as vacation and illness, may not be included in the employer’s reference. A parental leave is to be mentioned only if it represents a substantial actual interruption of the work activity (BAG 10.05.2005 Az. 9 AZR 261/04). Even in the case of a justified termination without notice, the reason for the termination of the employment relationship is generally not to be stated.
b) Qualified reference
In a qualified reference, the employer also assesses the employee’s work performance, including qualifications and conduct in the line of duty. It therefore also contains – in contrast to the simple reference – statements of fact and assessments of work performance and work behavior. The reference may not contain omissions (blank space technique), where the reasonable reader expects a positive mention (eloquent silence). The choice of words must also not give the impression of a reprimand.
If it is customary in an industry to mention certain characteristics, these must be expressly certified if otherwise the employee’s career advancement is unnecessarily impeded (BAG 12.08.2008 Az. 9 AZR 632/07). For example, in the case of employees who handle money, their "honesty" must be mentioned if this quality can otherwise be doubted.
The qualified reference must assess the management and performance during the entire employment relationship. It must therefore contain all facts and evaluations that are of importance for the assessment of the employee. One-off incidents are not to be mentioned, nor is the employee’s off-duty behavior. A qualified reference must likewise contain an evaluation of the employee’s performance.
A qualified employer’s reference can be structured as follows:
-Introduction (name, date of joining),
-career (career in the company),
-Description of duties,
-Willingness to work,
-Ability to work,
-Mode of operation,
-Examples of success,
-Performance summary (overall grade),
-Behavior toward interns,
-Behavior towards external parties,
c) Benevolent and truthful formulation of the employer’s reference
An employer’s reference must be truthful and must be formulated both sympathetically and comprehensibly.
aa) Truthfulness of the reference
The employer’s reference must reflect the Truth and contain all facts which are of importance for an overall assessment and in which a future employer has a justified interest (BAG 16.10.2007 Az. 9 AZR 248/07).
The employer’s reference must therefore be complete, d.h. there must be a mention of all events that are relevant to the assessment of performance and leadership and that the reader of the testimonial would normally expect. Omissions violate the requirements of truthfulness and clarity of the testimony, if they can cause the readers of the testimony to form an impression that does not correspond to the truth. A reference may not contain therefore there omissions, where the reader expects a positive emphasis. For example, an honest cashier may not lack a reference to her reliability. The testimony may contain only facts. Suspicions are not facts and therefore do not belong in the employer’s reference.
On the other hand, the employee is entitled to a thank-you wording and good wishes at the end of the reference (BAG 11.12.2012 Az. 9 AZR 227/11) not. References that contain such formulations and thus express personal feelings are not neutral in terms of assessment and are therefore not obligatory content of the employer’s reference.
bb) Benevolent wording
The employer’s reference must be benevolent must be formulated in such a way that it does not unjustifiably impede the employee’s professional advancement. A negative assessment of the employee’s performance and conduct is only permissible if it was characteristic for the entire duration of the employment relationship (BAG 10.05.2005 Az. 9 AZR 261/04).
cc) Certificate clarity
According to the requirement of the testimony clarity the testimony must be formulated clearly and understandably. It must not contain any formulations which have the purpose of making a statement about the employee other than that which is evident from the external form or from the wording. It is inadmissible to provide a reference with secret characteristics or formulations, by which the employee is to be judged differently than that is to be expressed in the reference wording (BAG 12).08.2008 Az. 9 AZR 632/07).
Therefore, a certificate may not contain any secret signs or formulations that identify the employee. Such a reference is not in order. Such statements are encoded formulations that contradict the requirement of clarity of the testimonial. Whether a formulation is actually a secret code is to be judged by the understanding of an average participant of the group of persons addressed by the reference (BAG 15.11.2011 Az. 9 AZR 386/10).
(1) A reference to a secret wording can be the following evaluations:
-"showed understanding for his/her work" (was lazy and did not perform anything),
-"among colleagues he was regarded as a tolerant employee" (for superiors he is a hard nut to crack),
-"for the concerns of the staff he/she proved a comprehensive empathy" (homosexual),
-"by her/his sociability she/he contributed to the improvement of the working atmosphere" (she/he tends to excessive alcohol consumption).
(2) A reference to a secret sign can be the following markings:
-Tick (slip) in the signature to the left – (employee is a member of a left-wing organization),
-Tick (slip) in signature to the right – (employee is a member of a right-wing organization),
-Double tick (slip) in the signature to the left – (employee is a member of an anti-constitutional organization),
-Vertical line to the left of the signature – (employee is a member of a trade union).
d) Typical formulations for report marks
Conduct is usually formulated on the basis of a grading scale. Typical formulations on the grading scale are when employer confirms to employee that he has performed the work assigned to him:
-"always completed to the fullest satisfaction" (very good performance),
-"always completed to full satisfaction" (good performance),
-"fulfilled to our satisfaction" (sufficient performance),
-"performed in a generally satisfactory manner" (deficient performance),
-"has made an effort to complete the work to our satisfaction" (inadequate performance),
-"has met our expectations" (poor),
-"strove with great diligence to complete the assigned tasks to our satisfaction" (She/He failed).
3. Certificate correction claim and damages
The employee’s entitlement to a reference is fulfilled if the employer has issued a formally correct reference with complete content and an average evaluation. Facts on which the employer bases its performance appraisal are fully reviewable by the labor court. In contrast, the employer has a margin of judgment in the assessment of the employee’s conduct and performance, which can only be reviewed by the labor court to a limited extent (BAG 14.10.2003 Az. 9 AZR 12/03).
a) Testimonial claims
If the employer does not issue a job reference of average type and quality with complete content, which meets the formal requirements, the employee may assert the correction and supplementation of the reference in court if the employer is in default due to a reminder from the employee (Section 288 para. 4 BGB; BAG 12.08.2008 Az. 9 AZR 632/07).
If the employer has not issued a reference, the claim must be directed to the issuance of a simple or qualified reference. If, on the other hand, the employee demands specific testimonial content, the claim must state exactly what the testimonial should contain. In contrast, a claim that merely requests the issuance of a benevolent reference is indeterminate (BAG 14).03.2000 Az. 9 AZR 246/99).
The employer then has to issue an employer’s reference without being allowed to refer to a judgment. It is to be backdated to the date of the first issuance.
b) Burden of proof and presentation
If the employer has issued the employee with an average reference, the employee must or. his lawyer in the labor dispute facts to present and prove, from which a better evaluation is to be ergegen. This would be the case if the reference certifies achievements "to the full satisfaction.
If, however, the employer has given the employee a below-average reference, the employer must explain and prove that its poorer assessment is true (BAG 14.10.2003 Az. 9 AZR 678/02).
If the employee wants a very good reference, he must present facts from which it can be concluded that he regularly performed at his best.
If the employer culpably violates its duty to provide references, it is obligated to compensate the employee for the resulting damage. This may be the case if the reference is late, but also if it was not prepared in the proper form. Damage may be caused if the employee is unable to obtain a job due to the lack of a reference and thus suffers a loss of earnings. The employee must prove that an employer wanted to hire him/her but did not do so due to the lack of a reference (BAG 16.11.1995 Az. 8 AZR 983/94).
Here you can find more information about labor law and especially about job references.