LAG Mecklenburg-Vorpommern, judgement dated April 2, 2019 - 2 Sa 187/18 (not legally binding)
The parties were contractually bounded by an employment agreement from the beginning of 2012 until the beginning of 2014. The plaintiff was employed as a "Network Infrastructure Manager". The defendant terminated the employment relationship in August 2013. In the subsequent proceedings for protection against unfair dismissal, the parties came to a settlement in which it was agreed, among other things, that a "favorable, qualified reference" would be issued. A reference was then sent on the basis of a list of activities drafted by the plaintiff in bullet-point format. The reference that was issued contained the list of activities drafted by the plaintiff, still in bullet-point format. Spelling and punctuation errors on the part of the plaintiff appeared in the reference, were not corrected by the defendant. The plaintiff requested that the reference should be corrected and that a closing phrase (thanks and good wishes) should be added, first out of court and then in court.
The Rostock Labor Court rejected the claim as unfounded and pointed out, in particular, that there is no claim to a closing phrase. The plaintiff continued to pursue his request in the appeal to the LAG and partially won. The plaintiff filed, in amendment of the labor court judgement, for a correction of the reference issued according to the plaintiff's draft and for it to be reissued. At the appeal stage, he initially filed alternatively for a brief closing phrase to be added to the reference issued and, once again alternatively, for an extended closing phrase to be added to the reference issued.
The LAG rejected the plaintiff's main request. According to the court, it did not matter whether it concerned the right to the issuing of a reference or the right to the correction of a reference, as the request was unfounded in both cases. The right to issuance was deemed unfounded to the extent that a reference had already been issued. The plaintiff was furthermore deemed to have no right to correction of the reference as the reference satisfied the requirements of a properly qualified reference.
The LAG allowed the first alternative request (addition of a brief closing phrase to the reference issued). In this respect, the plaintiff was deemed to have a claim to issuance of a closing phrase arising from §241 sec. 2 German Civil Code (BGB) in conjunction with the right of personality according to Art. 2 sec. 1 Basic Law for the Federal Republic of Germany (GG). Issuance of a closing phrase was deemed to have become established in practice. On the one hand, the closing phrase was deemed apt to reinforce the content of a reference. On the other hand, lack of the same may relativize the content of the reference and is usually evaluated negatively. The employer is obligated, according to § 241 sec. 2 BGB, to take into account in its actions the rights and legally protected interests of the employee. In specific, individual cases, therefore, the required degree of consideration should be ascertained by evaluating the interests involved on either side and based on the principle of proportionality. Refusal to issue a closing phrase here touches on the employee's right of personality. In view of the undeniably habitual nature of such closing phrases, the employer was deemed to be documenting, by omitting the closing phrase, that the relationship between the employer and the employee was no longer characterized by respect and esteem - at least towards the end of the employment relationship. By omitting the closing phrase, the employer is therefore deemed to be slighting the employee in public and therefore toward potential readers of the reference. The court stated that this restricted the plaintiff's professional advancement and was therefore of paramount importance, outweighing the interests of the defendant in issuing a reference without a closing phrase. The LAG sees it as a compounding factor that the defendant's refusal to add a closing phrase was explicitly justified in several documents by irritation with the plaintiff during the employment relationship and in connection with the negotiation of the settlement in the previous proceedings.
The decision represents an individual decision and it remains to be seen where the Federal Labor Court (BAG) will position itself on the issue in the next instance, which is pending (file reference 9 AZN 914/19)
The LAG is breaking new ground with this decision and its justification. According to the settled case law of the BAG, a closing phrase is not a necessary component of a final reference. According to the continued case law of the BAG, there is no legal claim to the issuance of a closing phrase. The employer is not obligated to redouble a positive assessment with a closing phrase (cf. recently BAG, judgement dated December 11, 2012, 9 AZR 227/11). By explicitly citing the decision of the BAG, the LAG Mecklenburg-Vorpommern essentially also sees it that way in the decision being discussed here (cf. point no. 80). Further LAG judgements partly attempted to construe such a right via the principle of "goodwill" (cf. explicitly LAG Düsseldorf, judgement dated November 3, 2010, 12 Sa 974/10; less explicitly LAG Hamm, judgement dated September 8, 2011, 8 Sa 509/11). Nevertheless, it has not been consolidated in the case law of the supreme case law of the BAG.
The LAG Mecklenburg-Vorpommern initially proceeds in a dogmatically proper way in its decision by making use of the plaintiff's right of personality, without explicitly naming it. In principle, basic rights only have an effect between the state and its organs on the one hand and the citizen on the other. There is no direct third-party effect of the basic rights, according to which these also have an effect between private individuals. The plaintiff's general right of personality can only be recognized via the indirect third-party effect of the basic rights. According to this, the basic rights must be observed in the judicial assessment of the facts of the case as the judge, as part of the judiciary, is bound in accordance with Art. 1 sec. 3 GG by the law and may not waive the provisions of the Basic Law. The LAG establishes the (general) right of personality in the Basic Law in a dogmatically incorrect manner, however, arising as it does from the interaction between Art. 2 sec. 1 and Art. 1 sec. 1 GG.
The LAG has attempted to make a decision that does justice to the interests in an individual case. This becomes especially apparent from the portrayal of "aggravating circumstances" in point 86 of the judgement. The proceeding was characterized here by the defendant's irritation at the plaintiff. The lack of a closing phrase and retention of spelling and punctuation errors were used intentionally to thwart the plaintiff in his career advancement. The LAG evidently wanted to counter this.
As mirrored by the case law, it is very unlikely that the LAG's judgement will endure before the BAG.
Hardly anything will change in practice. The employer will issue a favorable reference along with closing phrase in the case of "normal" departures in any case. If the employer terminates the employment relationship and is sued for unfair dismissal by the former employee, the reference will become a subject in the settlement negotiations and finally a reference with closing phrase will be issued. It is surprising, in the case in dispute, that the plaintiff, with attorney representation after all, made the content of the reference a subject of the settlement negotiations but not the closing phrase and punctuation and spelling checks.