In an employer’s reference, the employer certifies in writing to the employee the content and duration of the employment relationship. Legally speaking, a job reference is a document that the employer issues. However, the employer is not automatically obliged to issue a reference. This means that the employee must ask him or her. If he does, then the boss must issue the reference at the end of the employment relationship. This is regulated in the § 630 BGB and § 109 trade regulations. In doing so, the employee can determine the scope of the testimonial. For example, a simple job reference only covers the key data of the job, i.e. the tasks and duration. Such simple certificates are issued for smaller temporary jobs or part-time jobs. However, the employer must always issue a qualified employer’s reference upon request. This additionally includes information on the employee’s performance and social behavior. Important: Unlike a school report, an employer’s reference may not contain any grades, but must be worded out. From the wording in the job reference, however, you can sometimes read out grades. By the way: In the German Civil Code (BGB) and the Industrial Code (Gewerbeordnung), only the term "certificate" is used. In Austria the term "Dienstzeugnis" is common.
Good to know
- Every employee has the right to a job reference
- Every employer’s reference must be worded sympathetically.
- A job reference must be written on the company’s stationery.
- The employee must explicitly request the job reference.
- The employer must issue the reference promptly.
- As a rule, the employee must pick up the reference.
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When is a simple reference sufficient?
A simple employer’s reference only lists the most important points of the employment relationship, without any evaluative judgment. In the end, it is more of a certificate of employment. In the case of very short employment relationships or student jobs, a simple reference may be sufficient. However, if the employee needs the document for later applications, it is always advisable to request a qualified reference. In the case of longer employment relationships, a simple reference could give the reader the impression that the employee was dismissed for reasons of conduct. As an employee, you should therefore not be fobbed off with a simple reference.
How does a qualified reference look like?
There are no legal requirements for the structure of a qualified reference. Nevertheless, there is a standard that has developed in practice and from which the employer should not deviate. It starts with the heading: always write "Arbeitszeugnis" above the text. The introductory formula follows. In it, you list the employee’s personal details, position and length of employment. After that, there is a short introduction of the company, so that a reader from outside the industry can get an idea of the company. Following this, insert a complete description of the employee’s tasks. Here are already the first pitfalls in the job reference. Because from the task description no evaluation may result yet.
To avoid later disputes, you should discuss the job description with the departing employee. By the way: Depending on the activity, you can also work with bullet points for the sake of clarity.
If the employee’s tasks have changed in the course of the employment relationship, make this clear by listing them chronologically. In general, however, always list the most important activities first and the less responsible tasks below. Caution: self-evident facts must not find a place in the job description. For example, if you write in the reference that the cook was also responsible for cleaning his workplace, this will leave the reader with questions.
Performance assessment in a qualified reference
The performance appraisal forms the core of a qualified reference. Pay attention to the order here as well. It is better not to mention unimportant and self-evident "achievements". Because the reader could conclude from this that the employee has otherwise performed poorly. If the employee held a management position, then the reference must also refer to the management performance. It is recommended to conclude the performance appraisal section with a summary. At this point, the evaluation "at all times to the fullest satisfaction" is usually provided in different gradations. After that, the social behavior of the employee would have to be addressed. Here, too, an order has been established: In the first place, assess the behavior towards the supervisor.
In the case of managers, this is followed by the behavior towards the employees. After that you name the colleagues. If the employee also had contact with customers or business partners, then list an assessment of the outside contacts in the next sentence. The employer’s reference ends with the mention of the reason for termination and the closing formula. Signature and date are a mandatory part of the job reference. The date of issue must be close to the date of termination of the contract, otherwise the reader could make assumptions about a dispute before the labor court. Important: As an employee, you should pay attention to the completeness of the reference. If one of the above points is missing, there may be an intention on the part of the employer.
This is hidden between the lines in the employer’s reference
School grades may not be used in a reference and openly negative evaluations are forbidden. However, an employer may want to give special praise to an employee who has consistently performed above average. An employee who has never been punctual and whose work ethic leaves a lot to be desired is seldom given a kind word. So how does an enthusiastic or even frustrated employer succeed in conveying his genuine impression of the employee? In the language of employer’s references, a kind of "secret language" has developed over the decades, which is intended to convey an objective picture of the applicant to the trained personnel manager. However, the use of such secret codes is tricky and is often overturned by the labor court.
But remember: Only if the employee recognizes the secret language at all, he will turn to the labor court! Employers therefore have a good chance of giving an "unvarnished" assessment with the help of clever formulations in the reference. This way, the reference can be peppered with secret messages, which can be read out on the basis of certain formulations.
It is common knowledge that an employee who "improved the working atmosphere" by being "sociable" was in fact addicted to alcohol. It is more difficult to guess that an "affable and sociable" employee was assessed by the employer as an unpopular loner. If punctuality is mentioned in praise in the reference, this hides the statement that you do not have much else positive to report. This applies to all emphasis of natural behavior. A cook who always paid attention to hygiene probably did not otherwise demonstrate any special skills. If an employer wishes the employee all the best and good health for the future, this translates into: beware of absenteeism due to illness.
Conclusion: If the employment relationship ends in dispute, employees should hire an expert to review the reference.
You must request a reference
Many employees think that the employer must automatically give you a job reference when they leave the company. This is not the case. The employee has a right to a reference, but he must explicitly declare it. If you request a reference, you should make it clear to the employer whether it is to be a simple or qualified reference. However, special rules apply to apprentices’ certificates: Section 16 of the Vocational Training Act stipulates that apprentices do not have to request the training company to issue a certificate when their training relationship ends. Rather, the trainer must issue a written job reference on his or her own initiative.
However, only a simple employer’s reference, unless the apprentice expressly wishes otherwise. Trainees are therefore entitled to request a qualified job reference. Important: Even employees who have resigned at their own request or have been dismissed without notice retain a right to a reference.
When is the job reference due?
Upon request, the reference must be issued immediately upon termination of employment. Unfortunately, those who seamlessly take up a new job after leaving a company often initially lose sight of their entitlement to a job reference. You forget to ask the employer or cannot reach anyone in the personnel office. In some cases, employers promise to send the reference, but then do not send it or require the employee to prepare a draft for them. So the days go by and the employer’s reference is forgotten. However, the gap is noticed at the latest during the next application phase.
But does the claim then actually still exist? Can I still insist on a qualified reference months or even years later?? Unfortunately, there is no general answer to this question. By law, the right to a reference does not regularly expire until after three years. But be careful: Many employment contracts or collective agreements provide for shortened preclusion periods. This means that the employee often has to file a claim with the employer three months after the end of the employment relationship. If there is no reaction, the employee then has a further three months to sue for the reference before the labor court.
If there are no special regulations, then in theory employees have three years to sue for a reference. Nevertheless: If possible, you should request the reference immediately after the employment relationship has ended. On the one hand, the employer could object to forfeiture if, for example, the employee never followed up after the first demand for a reference and only tries to sue for the reference years later. On the other hand, personnel changes in the old company can of course mean that the assessment can only be made superficially on the basis of the personnel file. The provision of evidence in the event of a dispute is then more difficult for the employee in any case.
Collecting a reference?
The Federal Labor Court already had to deal with the question of whether the employee must collect the reference from the employer in 1995. After a dispute with her employer, a former employee demanded that the employer send it to her by mail. The judges came to the conclusion that, in principle, there is an obligation for the employee to pick up the certificate (Az. 5 AZR 848/93). Only in cases where collection would be disproportionately burdensome for the former employee does the employer have to send the reference. Such exceptions exist, for example, if the employee has meanwhile moved to a distant city. However, a prior dispute between the parties is not an argument for unreasonableness of the collection, the judges ruled. The employee does not have to pick up the reference personally, but can send an authorized representative.
Adhering to the correct form in the reference
Particularly in very small companies, sometimes no attention is paid to the form of the reference. An employer’s reference that is completely handwritten or shows traces of Tipp-Ex is unfortunately not uncommon in practice. If the parties have parted ways in a dispute, the employer often shows little care in drawing up the employer’s reference. However, case law not only sets requirements for the wording of the job reference, but also for its proper form! The reference must be printed on the company’s current paper. The paper must not be crumpled or stained. The date on the certificate must be close to the date of termination of the employment contract.
The signature must be provided by a person who is authorized to sign for the company, for example, the managing director or board member or an authorized signatory. The signature of a simple head of department can only be sufficient if this person was the direct superior and the position is described in more detail in the certificate. But the signature must also be formally correct.
The person signing must sign as he or she would in any other business matter. For example, the Hamm Regional Labor Court once had to decide whether a diagonally sloping signature is permissible on a qualified reference. The plaintiff employee had seen this as a devaluation. The background to this was that the employer issued the reference reluctantly and only after a lengthy legal dispute. The LAG Hamm ruled in favor of the plaintiff. This is because a diagonal signature is unusual in business dealings and causes the reader to ponder the content of the reference and to doubt its seriousness (Az. 4 Ta 118/16).
When can I request an interim report?
There are different motives for requesting an interim report card. However, there is no legal entitlement to an interim report. In some cases, this is stipulated in collective bargaining agreements or works agreements. The case law otherwise only approves the claim to an interim reference if the employee can assert justified reasons. In case of doubt, an employment tribunal must always assess on a case-by-case basis whether there is a claim to an interim reference or whether the employee must wait for an employer’s reference. The closer circumstances must be weighed. The case law is more firmly established to the effect that there is a claim to an interim reference if there is a significant change in the work tasks (e.g., a change in the employer).B. Change of department) of the employee comes. A change of direct supervisor is also a legitimate reason for requesting an interim reference.
Likewise, the application for another position can usually justify a claim for an interim report card. In practice, this justification is particularly relevant in the case of employment relationships in which there is already a notice of termination and the employee must apply accordingly. In the case of non-terminated employment relationships, some employees request an interim reference in order to enter into salary negotiations with the employer.
Interim report always in the present tense
When formulating an interim reference, it is essential to use the present tense. In the closing formula, the employer should indicate that he wishes for continued successful cooperation. In addition, it should be clear from the contents of the interim report on what occasion it was issued.
If there are no special regulations, then employees theoretically have three years to sue for a reference. Nevertheless: If possible, you should request the reference immediately after the employment relationship has ended. On the one hand, the employer could object to forfeiture if, for example, the employee never followed up after the first demand for a reference and only tries to sue for the reference years later. On the other hand, personnel changes in the old company can of course lead to the fact that the assessment can only be made superficially on the basis of the personnel file. In any case, it is more difficult for the employee to provide evidence in the event of a dispute.
Claiming an employer’s reference? How does it actually work?
Provided that there are no special collectively agreed or company deadlines, the employer is in default if he does not issue the reference promptly after request of the employee. The employee then has the option of taking the matter directly to the labor court. However, the employee should make sure in advance that he or she can provide proof that a qualified reference was actually requested by the employer. He must also give the employer a reasonable period of time to respond. Even if there is a dispute about the content or form of the reference, contact the labor court. In the first instance, neither employers nor employees need a lawyer before the labor courts.
The cost risk for a lawsuit is initially manageable. According to § 12 a ArbGG, the losing party does not have to reimburse the costs of the other party in the event of defeat. Thus, everyone bears his own costs.
Labor courts are responsible for reviewing job references
This regulation is intended to make it easier for employees to take their case to the labor court. Anyone who wants to defend himself against an unfair reference must state in his statement of claim exactly what is to be corrected and for what reasons. This is relatively simple if the content of the employee’s area of responsibility or the external form is at issue. It becomes more difficult if the assessment is controversial. Because the labor court must grant the employer a certain scope for assessment. Clearly negative statements or missing elements must be corrected by the employer in any case. In practice, the distribution of the burden of proof is decisive.
The employer only has to prove that the reference is complete and corresponds to the facts. If the employee considers himself to be above average, then he must prove this accordingly, for example with witnesses. If he needs internal company documents for this purpose (for example, sales statistics), the employer in turn must provide these if necessary. give. If the court comes to the conclusion that the reference was not correct, the employer is obliged to issue the reference again in accordance with the court’s specifications. The court can make exact specifications for the formulations in the reference in the judgement. The employee should make sure that the job reference is backdated so that the reader cannot draw any conclusions about disputes.
Do I have to write my own reference?
Even if this is common practice in many companies: As an employee, you do not have to write your reference yourself. The former employer is obliged to write you a reference with all due care. You can then check this reference and request corrections if necessary. If you decide to write a job reference yourself, we recommend that you seek professional assistance with the wording. The best thing to do is to obtain a reference example from the relevant industry. Because the correct choice of words and the correct structure are important for a job reference.
If the reference contains formulations that are not common in the respective industry, the reader could get the impression that a layman has written the reference himself. Worse still: unintentionally, you could bring a negative tone to your reference due to the wrong choice of words. In the world of references, many phrases that are common in everyday life and have a positive connotation are regarded as warnings to the potential new employer.
As an employee, you should therefore ensure that the reference does not contain any codes. An employer’s reference generator can help a legal layman to create a correct, qualified employer’s reference. This ensures that only common phrases appear in the reference and that the reader is not irritated by ambiguous statements.