Employment reference: Employees bear the burden of presentation and proof for above-average evaluation

However, as the Federal Labor Court already clarified in its ruling of July 11, 2013 (2 AZR 994/12), employees cannot demand “cuddly references” for no reason, but must demonstrate and prove above-average performance for good or very good references in the event of a dispute. If this is not possible, formulations such as “always to satisfaction” or “to full satisfaction” remain, which are considered to be an expression of average performance under reference law.

According to a recent decision by the Mecklenburg-Vorpommern Higher Labor Court, this has not changed, although statistically speaking “good” references appear to be the standard.

Background

In the case decided by the Mecklenburg-Vorpommern Higher Labor Court on July 2, 2024 (5 Sa 108/23), the employee and employer disputed the issue of a new qualified reference with a better assessment of performance and conduct.

The employer had given the employee a reference with the wording “always to our satisfaction”, which corresponds to an average rating. The employee was not satisfied with this. He was of the opinion that his performance would justify a “good” grade with the corresponding wording “always to our complete satisfaction”. He justified this as follows: He had carried out his official duties in full and the grade of “good” was justified simply because good performance regularly corresponds to average.

The employer denied that the employment relationship had been free of complaints in recent months.

Court decision

The Mecklenburg-Vorpommern Higher Labor Court confirmed the decision of the labor court, which had dismissed the claim at first instance. The employee is not entitled to a new, qualified reference with a better assessment of performance and conduct.

In particular, there is no legal entitlement to a good or very good reference, but only an entitlement to a performance-related reference. If the employer issues a reference that certifies average or satisfactory performance, the employee bears the burden of presentation and proof for the facts that justify an above-average assessment. If, on the other hand, the employer provides the employee with a reference that only contains an adequate or even worse assessment, the employer bears the burden of proof that it has fulfilled the employee’s entitlement to a reference.

In this case, the employee did not succeed in demonstrating to the satisfaction of the Higher Labor Court that his performance was better than average.

Practical tip

If employers part ways with an employee on bad terms and do not wish to issue an above-average rating for satisfactory or poorer performance, they can and should make a conscious decision to formulate a reference with an average rating only. In case of doubt, this will hold up in court and makes prohibited secret marks or similar, which can be challenged in court, obsolete. The usual closing formula with thanks, regrets and good wishes from the employee’s point of view can also be dispensed with. Even if the employer is supposed to use benevolent wording, he does not have to thank and regret if he does not wish to thank and does not regret.

The statistics may not change much, as employees often negotiate out seemingly undeserved evaluations during termination interviews.

Photo: shutterstock / Orathai Mayoeh