The exact formulation of employer’s references is of great importance in labour law practice and regularly unfold considerable potential for conflict between employer and employee at the end of an employment relationship. This is shown by another recent decision of the Federal Labour Court (Bundesarbeitsgericht, BAG) on the subject of “amending an employer’s reference”.
BAG, default judgment of 06.06.2023 – 9 AZR 272/22.
Employee’s requests for corrections lead to dispute
The plaintiff is an employee and was employed by the defendant from 15 August 2017 to 28 February 2021. In March 2021, the defendant issued the plaintiff a first reference. This reference contained at the end of the reference a thank-you and wish wording with the words: “We thank her for her valuable cooperation and regret losing her as an employee. We wish her all the best and continued success in her future career and life”.
However, after the plaintiff repeatedly asked her former employer to correct the reference because of some of the wording, the disgruntled defendant then changed the reference to the detriment of the employee and subsequently deleted the previously stated words of thanks and wishes from the reference. Instead, the reference ended with the sentence: “Ms. D is leaving our company at her own request”.
The employee defended herself against the subsequent deletion of the benevolent closing formula and sued for the issuance of an adapted reference. The reference should also contain the thank you and wishful wording issued in the previous version. The plaintiff is of the view that by issuing a previously issued reference, the defendant bound itself to the wording in this respect. The defendant counters that the principle of truthfulness of references excludes such final sentences if the employer’s subjective feeling has changed after issuing a reference.
Infringement of the prohibition of disciplinary measures
The BAG ruled in the last instance that an employer may only amend an employer’s reference once it has been issued to the detriment of the employee if objective reasons make a deviation appear appropriate. However, these were not admissible requests for correction by an employee. If an employer subsequently changed an employer’s reference regarding the typical final wording at the end of an employer’s reference, he would be in breach of the prohibition of disciplinary measures under labour law pursuant to section 612a of the German Civil Code (Bürgerliches Gesetzbuch – BGB).
The court justified its decision by stating that the prohibition of disciplinary measures protects the employee’s freedom of will, so that the employee may decide whether to make use of the rights to which he is entitled or to refrain from doing so without fear of being disciplined by the employer. Although the employer’s constitutionally protected freedom of opinion and entrepreneurial freedom had to be considered in the application and interpretation of the prohibition of disciplinary measures, this took second place to the interests of the employee. The scope of application of the prohibition of disciplinary measures was also not limited to the current employment relationship but had a post-contractual effect – considering the issuing of an employer’s reference. By subsequently changing the closing formula in the issued reference, the employer had caused the employee a disadvantage which was directly attributable to the employee’s permissible requests for changes. The preconditions for an infringement of the prohibition of disciplinary measures were therefore fulfilled.
Continuation of the previous line of case law
The BAG thus continues its case law from recent years. On the one hand, the decision confirms the BAG’s ruling of January 2022 according to which an employer is not obliged to provide an employer’s reference with a closing formula in which he thanks the employee for the work performed and wishes him all the best and much success for the future (BAG decision of 25 January 2022 – 9 AZR 146/21). On the other hand, the decision refers to a BAG decision of 2005 according to which an employer who must issue a “new” reference to the employee upon the employee’s justified request for a correction of the reference is bound to its previous assessment of the employee’s conduct, unless new circumstances justify a worse assessment (BAG decision of 21 June 2005 – 9 AZR 352/04).
The BAG thus uses the most recent case to continue the previous line of case law. In principle, an employee is still not entitled to a closing formula with benevolent words of thanks and wishes. At the same time, however, the employer is also bound to a formulation of thanks and wishes once it has been issued and cannot, in principle, subsequently delete it without objective reasons.
Conclusion and practical advice
The BAG’s latest ruling on the subject of “amending an employer’s reference” is the logical consequence of previous case law. In addition, the BAG states that the binding effect of the employer regarding conduct assessments once issued also refers to the typical concluding thank you and wish formula at the end of an employer’s reference.
Employers should be aware of this case law of the BAG and either completely refrain from using a corresponding concluding sentence or at least do not subsequently delete thank you notes and wishes to the employee from the employer’s reference.
For further information, please contact:
Prof. Dr. Martin Schimke, LL.M., Bird & Bird
martin.schimke@twobirds.com
