The employment reference: entitlement, form, truth and coded language

A bookkeeper leaves a joinery business after six years, last paid €3,400 gross a month. The owner certifies that she carried out her duties “zur vollen Zufriedenheit”, to his full satisfaction, and considers it praise. She reads it as a middling grade and asks for “stets”, always, to be added. Who has to prove what now, and may the owner even send the reference by e-mail?

An entitlement that arises when the job ends

The reference is neither a favour nor a custom but a statutory entitlement. Section 109(1) of the Trade Regulation Act, the Gewerbeordnung, grants it to every employee, and it arises when the employment relationship ends. The employer owes the document; the employee does not have to earn it.

The fact that the rule sits in the Gewerbeordnung is misleading about its reach. It is not limited to trading businesses but covers employment relationships in general. A cross-reference in the Civil Code shows this: the general reference rule for service relationships explicitly hands over to s. 109 GewO once an employee is concerned.

That cross-reference is in s. 630 BGB. The provision governs references for lasting service relationships in general and ends with the sentence that, for employees, the Gewerbeordnung applies. A craft business, a medical practice and an association therefore follow the same rule as a trading company.

Conversely, s. 630 BGB reaches beyond employees. It also gives a claim to the person performing a lasting service relationship who is not an employee. For that person the wording of the Civil Code itself applies: a reference on the service relationship and its duration, extended on request to performance and conduct in the service.

The trigger is the end of the relationship, not the dismissal. Whether it ends through notice from either side, a termination agreement or the expiry of a fixed term makes no difference to the claim. An employee who resigns also receives a reference; it is not a reward for parting on good terms.

An interim reference while the employment continues is not mentioned in s. 109 GewO. Where one is found in a collective agreement, a works agreement or the employment contract, that is where it comes from. This course deals only with the reference that the statute itself attaches to the end.

Trainees are covered by a separate provision in the Vocational Training Act with somewhat different content. It is explained in the course on trainee pay and is not repeated here. Everything that follows concerns the reference for employees within the meaning of the Gewerbeordnung.

Simple or qualified: the employee chooses

The statute knows two levels. The simple reference must at least state the type and duration of the work. The second sentence of subsection 1 asks for nothing more: what the employee did, and from when until when they did it.

The qualified reference goes further. Under the third sentence, the employee can require the statements to extend to performance and conduct in the employment relationship. The choice lies with the employee, not with the business.

This produces a clear division of roles. Without a request, the employer owes only the simple reference. If the employee asks for an assessment, the employer may not refuse it, even if they would rather say nothing about performance and conduct.

Performance and conduct are two separate subjects. Performance describes how the assigned tasks were carried out. Conduct concerns dealings with superiors, colleagues and customers. The statute limits both with the same three words: in the employment relationship.

That limit should be taken literally. What an employee does in their free time does not belong in the reference as long as it does not affect the employment relationship. The qualified reference assesses the work; it is not a character study of the person.

For an employee whose performance was weak, the simple reference can be the better choice. It says nothing unfavourable because it assesses nothing at all. That readers may interpret the missing assessment for themselves does not change the fact that the decision rests with the employee alone.

The type of work requires more than a job title. A future employer should be able to see from the reference which tasks the employee actually performed. “Clerk” says little; listing accounts payable, dunning and payroll preparation says what she could do.

The duration is the legal duration of the employment relationship, not the time spent in the last position. Someone who moved between departments internally receives a reference covering the whole relationship, and the stages belong in the description of the work.

Paper or electronic: consent decides

Subsection 1 speaks of a written reference. The normal case is therefore a signed paper document. Subsection 3 opens a second route alongside it: the reference may be issued in electronic form if the employee has consented.

Electronic form is therefore not excluded for the reference; it is subject to a condition. That sets it apart from a notice of dismissal, for which the law rules out electronic form entirely. Anyone preparing both documents in the same process should not confuse the two rules.

The consent belongs to the employee. The business cannot impose the electronic route unilaterally, not even by pointing out that all personnel records are now kept digitally. Without agreement, paper remains the rule.

In practice it is advisable to obtain the consent expressly and in a way that can be proven. It protects the business against the later objection that the electronically issued reference does not satisfy the claim. Section 630 BGB contains the same opening for service relationships, again dependent on the consent of the person entitled.

What electronic form requires technically is not governed by s. 109 GewO but by the general rules on legal form. An informal e-mail with a scan attached is therefore not automatically the same thing. When in doubt, the signed paper document is the route that leaves no room for a dispute about form.

Clear, understandable, no secret code

Subsection 2 contains two commands. The first is positive: the reference must be worded clearly and understandably. A reader with no prior knowledge of the business should be able to grasp what the employee did and how it is assessed.

Understandable also means free of internal abbreviations, project names or system labels that nobody outside the business knows. The reference is addressed to readers who have never set foot in the business. What they cannot understand cannot help the employee in the next application.

The second command is a prohibition. The reference may not contain features or wording intended to convey a statement other than the one apparent from its outward form or its words. What is meant are concealed messages to the next employer.

The prohibition covers two channels. The wording is the obvious one: a phrase that sounds friendly but signals criticism to insiders. The outward form is the less obvious one: paper, layout, signature and omissions can also communicate something the text does not say.

• a phrase that praises literally but is read as criticism among HR professionals
• the conspicuous omission of an item that is customary in references of this kind
• marks, underlining or highlighting whose meaning is only clear to insiders
• an outward form that makes the reference look careless or reluctantly produced

The list is not an official enumeration; it illustrates the two channels that subsection 2 names. What counts is the purpose: any design meant to tell the reader something other than what is openly written breaches the statute.

For the issuer, the safest rule is simple. What they want to say about performance or conduct, they write openly, and what they do not want to say, they do not encode either. A reference that can be read without a codebook already satisfies subsection 2 by itself.

The satisfaction scale in case law

The statute prescribes no grades. Practice has nevertheless developed a scale built on the formula of how satisfied the employer was with the way the tasks were done. The Federal Labour Court expressly adopted this scale in its judgment of 18 November 2014, case number 9 AZR 584/13.

What follows is case law, not statutory text. It shapes the practice of the labour courts because it comes from the highest labour court, but it appears in no section of any Act. Anyone conducting a dispute should therefore always check whether the line has developed since.

According to the reasons of that judgment, certifying that someone worked to the employer's full satisfaction corresponds to average performance, the grade satisfactory. For the grade good, more must be certified, for instance through a time element such as always, constantly or throughout.

The judgment also assigns the phrase that someone always worked to the employer's satisfaction, without the word full, to the middle grade. The time word alone therefore does not lift the grade; only its combination with full satisfaction produces the level good.

To support this, the senate draws on the widely used definition of school grades. Performance is satisfactory when it generally meets the requirements. It is good when it fully meets them, and very good when it meets them to a particular degree.

The court considers any step above the top level unnecessary. No further level has become established above the fullest satisfaction, it says, and an even fuller satisfaction is not needed. Anyone wishing to issue an outstanding reference will therefore already find the formula in the table.

The court also explained what the word satisfied means in this language. It does not describe the employer's mood but an assessment measured against what is objectively expected of an employee doing comparable work.

Just as important is the clarification of always. The word does not mean that no mistake occurred throughout the entire employment. It expresses something more than the usual, and no employer can expect a working life without errors.

Truthful before generous: who has to prove the better grade

The core of the judgment concerns the burden of proof. In substance its headnote says: if the employer has certified performance to full satisfaction, the employee must, in court, put forward and prove the facts meant to justify a better final assessment.

The senate bases this on the statutory wording. Section 109 GewO grants a claim to a reference that reflects performance, not to a good or very good one. Only once the employee has shown that nothing but an above-average assessment would reflect the performance must the employer respond with facts to the contrary.

The court expressly refused to be guided by the fact that good grades predominate in many sectors. How often a grade appears in references does not, according to the judgment, shift the burden of proof.

The senate is blunt about so-called courtesy references. A final grade that does not match actual performance is, in its words, untrue and therefore unlawful. There is no duty to follow such a practice.

For the business this means two things. It may certify average performance as average without carrying the burden in court. And it should know its own signals: the judgment suggests that a bonus paid, for instance, may speak against a merely middling assessment.

The judgment decides only the case in which the employee seeks to move upwards. On an assessment below average, the text we read says nothing. Yet the reference must be truthful then too, and a documented personnel file is the best basis for any honest grade.

Preparation prevents disputes. Whoever gathers the stages, the assigned tasks and any existing appraisals before writing can support every statement. Whoever writes from memory often assesses the last month instead of the whole period.

Finally, an order for practice. First establish whether a qualified reference has been requested. Then describe type and duration completely, next assess openly, and last choose the form: paper, or electronic only with consent.