A language on its own

German reference letters require special attention to detail, in particular with regard to the appropriate language. As a common understanding about the meaning of certain terms has developed, reference letters contain coded evaluations about the employee’s performance.

In a brand new judgment, the Federal Labour Court (Bundesarbeitsgericht, BAG) has ruled that an employer who states that the employee has carried out the assigned duties to “full satisfaction” (“zur vollen Zufriedenheit“) considers the employee’s performance as average (judgment dated 18 November 2014, docket number 9 AZR 584/13). If the employee then claims a better evaluation result, the employee is obliged to demonstrate and, if necessary, prove that his performance was in fact better than average. According to the court, this also applies if reference letters in the relevant field of business mostly contain good (“stets zur vollen Zufriedenheit” – “always to our full satisfaction”) or very good evaluation results ( “stets zur vollsten Zufriedenheit” – “at all times to our utmost satisfaction”).

In the case at hand, the plaintiff, who had worked as a receptionist in a dentist’s office, challenged her former employer’s reference letter evaluation, arguing that her performance should have been evaluated as “good”. The lower courts decided in favour of the employee, holding that the employer should have demonstrated that the employee’s work had been lacking. The Federal Labour Court reversed these decisions. In particular, it highlighted that the burden of proof in such proceedings did not change even if statistics show that most reference letters in this field of business contain more favourable evaluation results. The Federal Labour Court also stressed that the right to a reference letter, which is guaranteed under sec. 109 para. 1 of the German Industrial Act (Gewerbeordnung, GewO), only entitles the employee to a truthful reference letter. The evaluation result, while generous, must also be true to fact.