No Automatic Backdating of Reference Letters

Employers are not obliged to backdate employment references to the termination date. The decisive factor is the principle of truthfulness: the reference must and may bear the actual date of issuance.

Background

An unfair dismissal lawsuit concluded in late March 2023 with a court settlement, ending the employment relationship as of February 28, 2023. The employer agreed to issue a qualified reference letter with the grade “good.”

The employer issued the reference letter on April 11, 2023, dated “in April 2023.” The employee’s subsequent lawsuit to have it backdated to February 28, 2023, was unsuccessful.

Decision

The court clarified that the date on the reference letter reflect the principle of truthfulness. Absent a correction of an existing reference letter or an explicit agreement, employers are not generally required to backdate the reference letter to the termination date. Rather, it may bear the actual issuance date.

In the settlement agreement at issue, the parties had not agreed on a specific reference date or wording. The issuance date was not so far from the end of the employment relationship that the reference as to diminish the reference’s value. According to the Court, deviations of four to eight weeks are explainable by routine HR processes (workload, illness, vacation). This does not lead to any negative conclusions.

The Court also noted that the entitlement to a reference letter becomes due only once the employee has exercised their right to choose between a simple or qualified reference letter. That occurred only on the date of the settlement.

Key Takeaways

• Principle of truthfulness: A reference may bear the actual issuance date. Backdating is required only if expressively agreed.
• Delays of four to eight weeks after the end of employment are typical and do not undermine the reference.

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