Reference language for employers

At the end of every employment relationship, there's a reference. Every boss is legally obligated to provide one to their former employee. But what do you write if you don't think highly of your "ex"?

This article is part of the special topic: How to write employment references correctly.

As a rule, the employer must issue a so-called "qualified certificate" , i.e., one that, in addition to describing the field of work, also addresses the employee's performance and conduct.

The Federal Labor Court (BAG) ruled many years ago that employers are generally required to provide a "favorable assessment" of employees. A reference is considered "favorable" in this sense if it indicates at least a grade of "satisfactory" (see the two tables below).

Bad grade must be proven

If the employer wishes to give a lower grade, such as "sufficient" or even "unsatisfactory," they must expect to provide documented evidence of the employee's particularly poor performance in subsequent court proceedings. The Federal Labor Court (BAG) requires the employer to provide "concrete and verifiable" evidence of the employee's substandard performance.

If, however, the employee wants a grade better than "satisfactory," the burden of proof of their superior performance falls on them. They must then specifically explain why a grade better than "satisfactory" seems appropriate for them. Thus, with a grade of "satisfactory," the Federal Labor Court's requirements are met for the time being – and the employer avoids potential trouble.

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Reference: The former employee is sometimes allowed to force the boss to sign it.

Things get really interesting and potentially conflict-ridden, however, when the employer is asked to describe the employee's performance and behavior in detail.

In this regard, the law, in Section 109 of the Trade Regulation Act, only stipulates that the certificate should be "clear and understandable" and, above all, free of any secret language.

Nevertheless, clever employers do use certain secret formulas, which are, however, viewed critically by the courts and thus harbor potential for dispute: For example, the Federal Labor Court (BAG) has ruled that the phrase "we have met a reliable employee" does not necessarily mean the opposite and is therefore permissible (BAG – 9 AZR 386/10). 

Invalid secret formulas

However, the Federal Labor Court considers a reference to "honesty" and "punctuality" to be inadmissible, since such self-evident facts may not be mentioned in a reference because they very much indicate the opposite.

Mentioning works council or union membership is also prohibited and can be successfully challenged by the employee afterward. Caution is also advised here with regard to coded messages: The phrase "The employee advocated for the interests of employees both inside and outside the company," which indicates both works council and union membership, is inadmissible according to the Federal Labor Court (BAG of August 19, 1997).

Final sentence must be

The Federal Labor Court (BAG) has now also taken a position on the so-called "closing sentence" at the bottom of a reference. While employees previously had no right to a favorable closing sentence, the court now sees things differently: At least for a reference that is at least average (see above), the employer must include a closing sentence. Failure to do so would devalue the rest of the assessment.

In the opinion of the Federal Labor Court (case no.: 12 Sa 974/09), the following sentence is customary and sufficient: "We thank Mr. Müller for his work/cooperation and wish him all the best for his future career."

Speaking of the final sentence: Anyone who wants to add more to this sentence than what has just been described is, of course, free to do so. However, the wish for "health" is forbidden because it contains a secret message. This is the hidden reference to: Logically: common illness!

Conclusion

According to the legislature, certificates must be "clear and understandable." Secret language is prohibited.

Employers who want to play it safe should adhere to these guidelines. This means that obvious things like "honesty" and "punctuality" are left out, as are hidden references to works council or union membership. A final sentence should be included, wishing the employee all the best, but please, not good health.