Employer may not issue polemic reference letter as coercive measures may follow

While an employee’s enforceable claim to have a reference letter issued generally only covers the formal and substantial minimum requirements of such a letter, this does not apply if the employee is issued a reference letter which is stated in such a polemical and ironic way that its submission by the employee to a potential employer would expose the employee to ridicule. This decision was made by the Cologne State Employment Court in a decision dated 14 February 2017 (LAG Köln, docket no. 12 Ta 17/17). Employers who issue such polemical reference letters risk coercive measures such as penalty payments or imprisonment.

The legal dispute started with the dismissal of a housekeeper. In a settlement it was agreed that the employer would issue a benevolent and extended reference letter. As the employer did not issue the promised reference letter, the local employment court set a penalty payment in the amount of EUR 500 and, by way of substitute, imprisonment. While another dispute arose about the employer’s statement that he was unable to send the reference letter to the employee’s address, the employer issued a reference letter which referred to, among other matters, the housekeeper’s gender-dependent popularity and her inclination to take breaks whenever she felt the urge to.

During its examination of the claim, the court generally does not validate the content of the reference letter – this is subject to the general court proceeding and not the compulsory execution of a claim which has already been confirmed by the court. However, the State Employment Court held that the issuing of a grossly personal, polemical and ironic reference letter which exposes the employee to ridicule does not fulfill the minimum requirements which any detailed reference letter is subject to. For this reason, the “reference letter” issued by the employer did not constitute any fulfillment of the employee’s claim. A detailed reference letter violating these minimum requirements may rather be compared to a reference letter which contains no evaluation of performance at all – therefore, it may not fulfill the minimum requirements of a detailed reference letter.