The date on a qualified employer’s reference letter must regularly indicate the date of the legal termination of the employment relationship and not the date on which the reference letter was actually (physically) issued.
Cologne Labor Court, decision of March 27, 2020 – 7 Ta 200/19
The employer and the employee entered into a settlement agreement in dismissal protection proceedings on the validity of an extraordinary termination without notice and, alternatively, ordinary termination. This settlement ended the proceedings. In the settlement, the employer undertook “to provide the plaintiff with a reference letter which covers leadership and performance, supports the plaintiff in her professional advancement, contains a good performance and leadership assessment and a last paragraph in which the employer thanks the plaintiff for her work, expresses regrets about her leaving and wishes her the best for her future endeavors. The plaintiff is entitled to submit a draft reference letter to the defendant, from which the defendant may only deviate for good cause“.
In deviation from the employee’s draft, the employer – in fulfillment of the settlement – issued a reference letter dated to the day of its preparation (September 5, 2019), even though the employment relationship had legally ended on December 31, 2018 already.
Since the employer refused to change the date, the employee attempted to demand the correctly dated reference letter by means of a penalty payment procedure (sec. 888 of the German Code of Civil Procedure). In these proceedings, the employer argued that there was an important reason for the deviation from the draft reference letter, due to the principle of the truthfulness of the reference. According to the employer, this principle required him to date the reference letter to the day on which it was first issued.
In the opinion of the Cologne State Labor Court, there is no “good cause” for the use of a different date in the reference letter than the one the employee stated in her draft reference letter (date of the legal termination of the employment relationship). A “good cause” could indeed exist if the contents in the draft of the reference letter provided by the employee violated the requirement of the truthfulness. However, that is not the case.
The Court argued that it is common practice in the professional world (and has also been approved by rulings of the highest labor court) to date reference letters to the day the employment relationship legally and effectively ends. This not only creates legal certainty, but it also prevents possible speculation as to whether a dispute has arisen about the issuing and contents of the reference letter. Such could arise if a longer period elapsed between the legal termination of the employment relationship and the date a reference letter is actually issued.
In addition, according to the Cologne State Labor Court, there is also another factual reason for dating a reference letter to the day of the legal termination. For it is that date that has to serve as a reference point for the retrospective assessment of the employee’s conduct and performance during the employment relationship. That date therefore designated the point in time from which the necessary assessment of the content of the reference letter was made.