Employment references: Grades, secret codes and your right to correction

A work reference doesn't contain grades, but rather comparative terms, and the legal situation behind them surprises most recipients. The Federal Labor Court treats the grade "satisfactory" as a middle-of-the-road rating. Anyone wanting a better evaluation must prove that their performance was above average. Only below this threshold does the burden of proof shift to the employer.

This results in a different order than expected. The first question is not whether the reference letter sounds favorable, but rather what grade the text actually encodes and who would have to prove it in case of a dispute. The second question is what is missing, because omissions act as a warning signal in HR departments. Both of these points can be checked as long as the reference letter hasn't yet been circulated among job applicants.

We are Smart Employment Law, a law firm with two offices in Hamburg specializing exclusively in employment law. We advise and represent employees, employers, and works councils. This is an advantage for your reference letter, as we are familiar with the opposing side's arguments and standard phrases from daily practice and know where HR departments tend to give in.

The employment reference is not a peripheral issue. It accompanies you for years and is often read more closely than the resume in application processes. Anyone who has just received a notice of termination or is negotiating a separation should consider the reference from the very beginning. How does a reference, Unfair dismissal claim before the labor court and how to integrate severance negotiations is shown below.

The most important information at a glance

• Claim: According to § 109 GewO, you are entitled to a written certificate upon termination of your employment, and upon request, to a qualified certificate with an evaluation of your performance and conduct.
• Scale: The report card must be truthful and positive. There is no right to a desired grade, but there is a right to an assessment that reflects your actual performance.
• Grading scale: The grade is determined by comparative and superlative words such as "always" and "most." If such a word is missing, the grade drops, even though the sentence sounds positive.
• Secret codes: Encrypted disparagements and omissions are inadmissible, but still occur in practice.
• Burden of proof: Up to a grade of "satisfactory," the employer does not have to provide any evidence. For a better grade, the burden of proof lies with you.
• Proceed: First, a written request for correction with specific wording and a deadline, then a lawsuit for correction of the certificate.

What your rights are to a work reference.

The right to a certificate of employment is enshrined in Section 109 of the Trade Regulation Act. It arises upon termination of the employment relationship and applies regardless of who terminated the employment or for what reason. The right remains even after termination during the probationary period, after resignation, or after a contentious separation.

The law distinguishes between two types of certificates. A simple certificate only states the type and duration of employment. A qualified certificate additionally includes an evaluation of performance and conduct. You must request this evaluation, as it is contingent upon your consent. In practice, the qualified certificate is the standard because a simple certificate is considered a red flag in job applications.

Formally, the certificate must be on company letterhead, signed, and free of any deletions, stains, or additions. Issuance by email or fax is insufficient, as electronic form is explicitly prohibited. The date is also important. If the certificate bears a date months after the termination of employment, it creates the impression that there was a dispute over the certificate.

The reference letter is due upon termination of the employment relationship. Employees who are on garden leave or have a long notice period can request an interim reference letter in advance if they have a legitimate interest. Such an interest exists, for example, if you are applying for a job during your garden leave or if your supervisor is leaving the company. The interim reference letter has a practical advantage: its content is binding on the employer later on, as they cannot suddenly give a lower rating without new information.

The grading scale in employment references: How to recognize your evaluation

References do not contain school grades, but rather standardized language. These language components have evolved over decades and are interpreted uniformly by human resources departments. Three areas are crucial: the performance evaluation, the conduct evaluation, and the closing statement.

Performance appraisal

The key statement regarding performance follows a clear scale. "Always to our complete satisfaction" represents a very good rating. If the word "always" is omitted, a good rating remains. "To our full satisfaction" corresponds to a satisfactory result. "To our satisfaction" is already sufficient, i.e., a grade of four. Anyone reading that tasks were completed "on the whole" or "overall" satisfactorily has received a weak rating.

Pay particular attention to the wording used when describing tasks. Phrases like "made an effort," "showed understanding," or "diligently completed the assigned tasks" describe effort rather than results. They downplay performance without explicitly criticizing it.

Behavioral assessment

The performance review outlines the employee's relationships with superiors, colleagues, and customers. The order is important. Superiors are typically listed first. If superiors are mentioned unusually late or omitted entirely, the HR department interprets this as an authority issue. Similarly, a lack of customer focus in a sales role is perceived as a negative assessment.

Here, too, comparative and superlative words are crucial. "His conduct towards superiors, colleagues, and customers was always exemplary" is a very good assessment. "His conduct was impeccable" is below that. "His conduct gave no cause for complaint" merely describes the absence of problems and is interpreted as a weak evaluation. If the conduct assessment is completely missing, even though the reference letter evaluates performance, the reference is incomplete, and you can request the addition.

Closing formula

The closing statement typically concludes with three elements: regret at the employee's departure, thanks for their cooperation, and best wishes for the future. There is no legal entitlement to this formula, as ruled by the Federal Labor Court in 2012. However, its absence in an otherwise positive reference letter creates a jarring effect. Therefore, we regularly negotiate the closing statement, especially in cases of amicable separation. If, on the other hand, the departure is described as "at the employee's own request" when the employer initiated the termination, the sentence is incorrect and must be amended.

Secret codes in employment references: What lies behind typical phrases

Open criticism is inadmissible in a reference letter. Therefore, circumlocutions have been developed that sound friendly but ultimately derogatory. The law explicitly prohibits such veiled statements. A reference letter may not contain any characteristics that convey a different message than its literal wording. In practice, we still encounter these coded language, often out of habit and not intentionally.

Typical examples: Someone who "contributed to improving the working atmosphere through their sociability" is considered a colleague with a drinking problem. "He always strove for a good relationship with superiors" suggests conflicts. "He showed empathy for the concerns of the staff" points to company politics. "She completed all tasks with great diligence and interest" describes unsuccessful zeal. "He was always punctual" as highlighted praise signals that there was nothing else to praise.

At least as important is what's missing. Lawyers call it eloquent silence. If a manager's performance isn't mentioned in a reference letter, if a bookkeeper's diligence is lacking, or if a cashier's honesty goes unmentioned, HR professionals interpret this as a warning. This omission is also inadmissible if the relevant characteristic is assessed in a way that is standard for the industry.

Another point concerns past incidents. Isolated transgressions that are insignificant to the overall picture should not be included in the report card. Also, a Warning letter in employment law It should not be included if the incident does not significantly shape the overall picture. Periods of illness, parental leave, works council activities, or participation in strikes are also not permissible, unless they were so long as to affect the overall validity of the reference.

Why the burden of proof determines your grade

Many people assume that a good reference letter is the norm. Legally, however, the situation is different, as described at the beginning. In practice, the burden of proof is distributed as follows: you must provide evidence for anything above the average grade, and your employer for anything below.

The fact that predominantly good and very good references are issued in practice does not change this distribution. According to case law, statistics on reference practices are insufficient to justify a better grade. Concrete points of reference are required.

That's why we gather supporting documents with our clients early on. Useful documents include performance agreements with achieved goals, evaluation forms, bonus statements, sales or project figures, awards, positive feedback via email, and any existing interim references. Those who only look for these documents after their last day of work usually no longer have access to their inbox or internal network drive. Therefore, back up relevant documents before leaving the company, insofar as this is permissible under data protection law.

How to correct your employment reference: Here's how to proceed

You do not have to accept a flawed reference letter. You are entitled to a reference letter that meets legal requirements. This could mean a better grade, the deletion of an inadmissible passage, or the addition of missing information about your duties.

First, systematically review the reference letter: Are the name, start and end dates, job title, and list of responsibilities correct? Are all essential tasks mentioned, including any subsequent promotions? Is the length appropriate for the period of employment, as a half-page reference after eight years already reflects negatively? Does the text contain comparative and superlative words, or are they missing? Is a characteristic typical for your position omitted?

Next, request the correction in writing. A request that not only objects to the error but also proposes the desired wording is effective. Set a deadline of approximately 14 days. A complete draft proposal significantly increases the success rate, as the employer then only needs to agree. If they do not respond, file a lawsuit for correction of the reference letter with the labor court.

In legal proceedings, the request must be specific. The court cannot formulate its own request but orders the issuance of a certificate with a specifically defined content. Therefore, the desired text must be included in the request. If the employer fails to comply with the judgment, the claim will be enforced by means of a coercive fine pursuant to Section 888 of the German Code of Civil Procedure (ZPO).

Two points regarding the procedure: The amount in dispute for a reference letter dispute is typically one month's gross salary. And in the first instance before the labor court, each party bears its own legal costs, even if it wins. Legal expenses insurance usually covers these costs. We'll clarify in advance whether the effort is worthwhile. We explain the difference specialization makes on our page about... Advantages of a specialist lawyer for employment law.

Experience shows that four requests for changes are particularly successful: adding missing tasks and responsibilities, correcting an incorrect reason for termination, removing inadmissible references to illness or isolated incidents, and including a complete performance evaluation. However, simple grade corrections are only successful with solid evidence. Therefore, prioritize your objections according to their likelihood of success, rather than questioning the entire reference letter.

You shouldn't wait too long. The right to a reference letter expires after three years, but contractual or collective bargaining agreement exclusion periods can be significantly shorter and often take effect after three months. Anyone who only reacts a year later must also explain why the reference letter was apparently sufficient before then.

References, dismissals and termination agreements: the best time

The easiest way to obtain a good reference is during the termination negotiations. As long as the end of the employment relationship is being discussed, the employer has an interest in a quick resolution. After the last day of work, this interest diminishes.

Therefore, a certificate should be included in every agreement. In a Have your termination agreement reviewed A court settlement should not only state that a favorable, qualified reference letter will be issued. Specify the grade precisely and, if possible, attach the text of the reference letter as an appendix. A clause that only promises "favorable" is of little value in a dispute, as its interpretation can be contested.

This also applies to negotiations regarding a Severance pay upon termination. The reference grade, reason for termination, garden leave, and severance pay amount are all negotiable points that can be addressed together. Focusing solely on money means giving something away elsewhere. Furthermore, after a dismissal has been issued, there is a three-week period for filing a claim for unfair dismissal. During this time, the reference letter can usually be negotiated as well, which is why we advise you on every Lawyer for termination in Hamburg also check the entitlement to a certificate.

These mistakes cost you applications

Three patterns are particularly common. First, the reference letter is filed away unread because it sounds favorable. Second, the employer is asked for a change over the phone without anything being in writing, so there is no proof later on. Third, a complaint is formulated in general terms, for example, by stating that the reference letter is "too bad," without specifying any concrete change requests.

This can be avoided with a clear process: Review the certificate within two to three weeks, note down any issues individually, formulate the desired wording, set a deadline, and document everything in writing. If you are unsure which grade is actually stated in your text, have the certificate reviewed before applying for jobs with it.

Have your certificate checked before you apply.

A single missing word can jeopardize your application for months. That's why we review certificates sentence by sentence, assess the grade, and identify what can be effectively addressed. If you're unsure, Describe your case to us. The initial consultation and brief assessment are free of charge. We will get back to you promptly and tell you frankly whether a correction has a prospect of success.

It is especially urgent if you have also received a notice of termination. In that case, you have three weeks to file a claim for unfair dismissal, and this is the most effective time to negotiate your reference letter. Contact us immediately in this situation.

Frequently Asked Questions Regarding the employment reference

author

Raphael Lugowski

Raphael Lugowski is a specialist lawyer for employment law and has been advising employees, works councils, and staff councils in all areas of individual and collective employment law since 2016. His areas of expertise include: protection against dismissal, termination agreements, works constitution law, and employment law at the intersection of digitalization and AI.

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