Repeatedly, employees express dissatisfaction with their references. They may subsequently request their employer to revise the reference.
If a reference is justifiably requested to be changed, the employer must not alter the content of a previously issued reference, including the thank-you and closing formulas at the end of the reference, to the employee’s disadvantage without valid reason. Doing so breaches the prohibition of reprimands under labor law. However, there is no right to a thank-you and closing formula in the reference.
Employee criticizes absence of thank-you formula
The Braunschweig Labor Court (judgement of December 03, 2021 – 4 Ca 376/21) and the Lower Saxony Regional Labor Court (judement of July 12, 2022 – 10 Sa 1217/21) supported an employee’s claim. The defendant’s appeal before the Federal Labor Court confirms this: The plaintiff is entitled to the thank-you and closing formula that was already included in the first two references.
Employer can omit thank-you formulas from the start
However, the Federal Labor Court clarified that an employee is usually not entitled to the inclusion of a thank-you and closing formula in the reference (Section 109 (1) sentence 3 GewO or Section 241 (2) BGB).
The violation of the prohibition of labor law measures under Section 612a of the German Civil Code (BGB) occurs if, due to the employee’s change requests, the third reference deviates concerning the thank-you and closing formulas, and such a formula, already present in the previous references, is removed.
Prohibition of reprimands extends to subsequent employment contract relationship
The plaintiff’s interest in asserting her rights against the defendant without fear of reprimand outweighs the defendant’s interest in altering the content of the reference, which it initially composed, in response to the plaintiff’s lawful behavior. The defendant’s freedom of expression is secondary in this case.
The modification to the closing formula in the third certificate was to the plaintiff’s disadvantage. Although the plaintiff was not initially entitled to a closing formula, her situation was objectively worsened by the change.
The Federal Labor Court also inferred a direct link between the plaintiff’s correction request and the subsequent removal of the thank-you and closing formulas by the defendant. The plaintiff is entitled to be restored to the position she was in before her requested correction.
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BAG judgment of 06/06/2023 – 9 AZR 272/22
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German Employment Law
German Employment Contracts: These Contents Should Be Included
