Basic knowledge about job references

At the end of an employment relationship, the employee is entitled to a written reference. Here is the most important information.

An employment reference always contains information about the type and duration of the employment relationship (simple reference), but can also be more comprehensive and report on the employee’s performance and conduct (qualified reference). Such a reference is not only issued as a final reference, but can also be issued provisionally before the end of the employment relationship or as an interim reference.

Is there a right to an employer’s reference?

Yes, in principle, employees as well as persons similar to employees and trainees are entitled to a certificate. This arises for trainees from Section 16 of the Vocational Training Act (BBiG) and for employees from Section 109 of the Industrial Code (GewO):

(1) The employee is entitled to a written reference upon termination of employment. The reference must at least contain information on the type and duration of the activity (simple reference). The employee may request that the information also cover performance and conduct in the employment relationship (qualified reference).

(2) The reference must be formulated clearly and comprehensibly. It must 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 the wording.

(3) The issue of the certificate in electronic form is excluded.

In most cases, a qualified reference can be requested. A simple reference is only sufficient in exceptional cases if the person was only employed for a very short period of time and it would therefore not be possible for the employer to comprehensively assess their performance. If the reference is required in order to apply for a new position, it may be requested even before the notice period has expired. However, the employer may then mark this certificate as “provisional”.

The interim certificate

In order to be entitled to an interim reference, the employee must have a legitimate interest. This may be the case, for example, if

  • the employer has held out the prospect of dismissal;
  • the employee’s area of responsibility is to be changed (e.g. by transfer);
  • a change of supervisor takes place;

In the meantime, case law has recognized that preparing for a career change also constitutes a legitimate interest. This means that, in the end, an interim reference can often be requested.

Certificate content of a qualified reference

The required content of a qualified reference is information about the employer, information about the employee, a precise description of the employee’s work, an assessment of the services provided, the duration of the employment relationship and the date of issue of the reference. The employer may only include reasons for the termination of the employment relationship in the reference if this is in accordance with the employee’s wishes.

In addition, periods of absence, such as parental leave or extended illness, may not be included in the reference. The reason for this is that this has nothing to do with the employee’s duties and performance. The sole purpose of the reference is to evaluate the work performed. The only exception is if a period of absence has led to a significant interruption in the employment relationship. This includes interruptions that are so significant in terms of their location and duration that a false impression of the employee’s work performance would be created if they were not mentioned.

Employees should ensure that their reference letter is issued promptly

It is particularly important for employees that there is not too much time between the end of the employment relationship and the date of the reference. This would give potential employers the impression that there was a dispute about the content of the reference.

Therefore, employees who have been held up for months with the issue of a reference should insist on backdating as far as legally possible. If the employer was late in issuing the reference, there may even be a right to backdating.

Evaluation standard of the employer

Employers are obliged to evaluate performance truthfully and favorably in a qualified reference. It is forbidden to include explicitly negative evaluations in a reference, even if the employee has actually performed poorly in this respect. A special form of “reference language” has been developed for this purpose, which can be used to present different levels of evaluation in a coded manner. This often makes a reference sound better than it actually is. For example, the statement that the work was done “to our satisfaction” means that the grade is satisfactory .

However, it is forbidden to use clever wording to include hidden messages in the reference that make the employee look bad to potential new employers. For example, it is an inadmissible reference to works council activity if the employer includes in the reference that the employee “always stood up for the interests of the workforce”. A reference to alcohol addiction would be if the employer wrote that the employee “contributed to the working atmosphere with his sociable nature” or that he “always fully supported his team”.

Wrong reference or no reference at all – and now?

Due to the claims arising from § 109 GewO, § 16 BBiG, a refusal to issue a certificate constitutes a breach of a legal obligation. Consequently, an action can also be brought before the labor court for the issue of a reference. The employee can also take legal action if a false reference is issued.

Anyone wishing to take legal action should always act promptly, as there may be preclusive periods or the court may consider the claim to be forfeited.

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