Reference letter (enforcement)

Reference letter (enforcement) / Durchsetzung Anspruch auf Arbeitszeugnis

March 26, 2024

Employers are obliged according to § 630 S. 4 of the German Civil Code (BGB) and Section 109 of the German Trades Code (GewO), employers are obliged to provide employees* with a written reference at the end or termination of an employment relationship, which must contain at least information on the type and duration of the activity (simple reference) and, at the employee's request, also on performance and behaviour in the employment relationship (qualified reference). Section 109 (2) GewO contains further requirements: the wording must be clear and comprehensible and must not be intended to make a statement about the employee that differs from the wording or form. Executives and managers are considered employees and are therefore also entitled to receive a reference. The entitlement to a reference does not depend on whether the employee works full-time or part-time.

If the employer does not fulfil this entitlement or does not fulfil it sufficiently, the employee is entitled to fulfilment, i.e. the issue or correction, and possibly to compensation.

Claim for issuing a reference letter or correction

If the employer has not issued a reference in violation of Section 109 GewO, the employee can demand that it be issued. If the employer has issued a reference that does not meet the statutory requirements, the employee can demand subsequent fulfilment, in this case correction.

An improper reference that does not contain all the required information in accordance with Section 109 (1) GewO or does not meet the requirements for specificity in Section 109 (2) GewO does not fulfil the employee's claim, meaning that the employee is entitled to subsequent fulfilment. According to case law, this also expressly applies to deficiencies in the content of the reference. The right to rectification includes the issue of a new, proper reference that is to be backdated to the original date of issue (provided the employee is not responsible for the delay). According to the case law of the Federal Labour Court (BAG), the employer is bound by the part of the original certificate that was not objected to by the employee.

The right to rectification is limited to the mandatory information from Section 109 GewO; the employer cannot be obliged to provide further information, such as personal feelings. For example, the BAG has ruled that the employee is not entitled to a thank-you, regret and wish formula at the end of the reference, regardless of whether it is generally customary in references.

The right to a reference expires within the standard limitation period of 3 years, but may expire earlier due to forfeiture if the employee does not assert it within a reasonable period of time (depending on the individual case after 10 months) after termination of the employment relationship and the employer could no longer have expected the request. The claim to rectification of an inadequately issued reference may also lapse due to the passage of time and inactivity on the part of the employee (after just 5 months, depending on the individual case), which is why the employee should complain about the inadequacy of the reference promptly after receiving it.

When can a letter of reference be requested?

The entitlement to the issue of an employer's reference arises upon termination of the employment relationship, i.e. usually when notice of termination is given or if a cancellation agreement is to be concluded. The claim can already be asserted on the day the letter of termination is received. However, it should be noted that employees regularly have an interest in receiving a reference dated on the date of termination. An interim reference can then be considered for applications to other employers. An interim reference can always be requested if the employee has a legitimate interest. This is regularly the case if notice of termination has been given or a settlement agreement has been initiated.

How must the right to a letter of reference be asserted?

No special form is required for asserting the right to a reference. It is advisable to assert the claim in writing so that it is comprehensible. A verbal request is usually more difficult to prove.

Claim for damages in the event of non-issuance

If the employer does not issue the reference at all or if the reference is completely unsuitable for the intended purpose, i.e. in particular the application for another job, e.g. because it is worded polemically, the employee is entitled to compensation for delay in performance in accordance with Section 280 (2) BGB under the conditions of default in accordance with Section 286 BGB. Default therefore requires a reminder from the employee to the employer.

The employee's first request to the employer to issue an employer's reference is not yet to be understood as a reminder to trigger default. Firstly, the employee must exercise his right to choose whether he wishes to receive a simple or qualified reference and then grant the employer a reasonable period of time to prepare it before he can issue a reminder and trigger the default.

The employee must also have suffered damage, in particular through loss of earnings - for this, the employee must prove that another employer did not hire him because of the missing or inadequate reference and would have hired him with a proper reference, which is difficult to prove. In addition, the employee must assert the correction promptly if - in the case of an incomplete or deficient reference - it can be assumed that the employer does not know that the reference was not properly issued, otherwise his claim for compensation may be reduced or excluded.

Enforcement in court

The employee can assert the issue or correction of the reference by bringing an action before the labour courts. In the case of an action for the issue of a reference, the action is only directed at the issue, not at specific wording. When enforcing the correction, it should be noted that the application must be formulated in such a way that it could be enforced by way of compulsory enforcement, otherwise the action cannot be granted if the application is vague or the judgement issued would not be enforceable. Therefore, in such cases, the application must be based on the exact wording that the employee requests as a judgement. It may also be possible to request that the employer prepare and submit a qualified reference in accordance with a draft to be submitted by the employee.

The employee must demonstrate and prove that an employment relationship existed, that the entitlement to a reference is due and - insofar as he/she claims a qualified reference - that he/she requested this from the employer. The employer must demonstrate and prove if the claim has expired or if there is a defence against it. The employer cannot withhold the issue of the reference on the basis of its own existing claims arising from the employment relationship.

If the employee wishes to assert the correction of an inadequately issued reference, the employer must generally prove that the reference fulfils the requirements of Section 109 GewO and that the employer has fulfilled its obligation to issue the reference in full. However, in the event of a dispute about the assessment level, case law differentiates according to the assessment or grade the employee is seeking: the employee bears the burden of proof for the facts underlying the employee's request for a more than satisfactory or average assessment. If, on the other hand, the employee was given a below-average assessment, the employer must provide evidence to justify this. If a fact on which a certain assessment is based cannot be proven, the court will issue a certificate with a satisfactory assessment.

The general principle of the truthfulness of a reference must be taken into account when asserting a claim in court, according to which the employer may not be obliged to issue assessments or other reference formulae contrary to the truth. The basis for this principle is that the reference is a decision-making basis for recruitment by future employers.

The deciding labour court can review the entire reference and, if necessary, make new formulations or order the employer to delete certain parts of the reference.

*If, in future, we only use the generic feminine or the generic masculine for better readability, this expressly includes all genders.