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11-30-2021Article

Update Employment Law December 2021

Inadmissible assessments in an employer's reference in tabular form with "school grades"

BAG dated 27 April 2021 - 9 AZR 262/20 

The employer regularly does not fulfil an employee's right to a reference pursuant to Section 109 GewO by assessing the employee's performance and conduct in the employment relationship in a tabular form similar to a school report. The individual emphases and differentiations in the assessment required to achieve the purpose of the reference can regularly only be adequately emphasised by a reference formulated in continuous text (guiding principle).

Facts

The Federal Labour Court essentially had to deal with the question of whether the employer fulfils an employee's entitlement to a reference by means of a table form based on a school reference. 

The plaintiff was employed as an electrician by the defendant, a manufacturer of large series of washing, care and cleaning products for cosmetics and households. After the plaintiff terminated the employment relationship by resigning after almost ten years of work, he received a report in tabular form, which was reminiscent of a classic school report. The final performance evaluation of the report was altogether "satisfactory". Individual grades ranging from once "very good" to mostly "satisfactory" were given, for example, for the categories "quality of work", "cleanliness in the work area", "speed of work" and many more. The plaintiff was of the opinion that this (tabular) presentation of the performance and conduct assessment according to keyword-like assessment criteria provided with "school grades" was unusual and could therefore create a negative impression. In addition, the assessments made were inaccurate. He had always performed well and had behaved impeccably towards superiors, colleagues and customers. The plaintiff therefore requested the issuance of a reference in continuous text, which the plaintiff preformulated in the statement of claim. The defendant, on the other hand, took the view that the reference it had issued satisfied the requirements of Section 109 of the Trade Regulations Act (GewO) and applied for the action to be dismissed. 

Decision

The Labour Court partially upheld the action - and thus the necessity of the wording of the reference in the continuous text. Both parties appealed against this decision at the Regional Labour Court (Landesarbeitsgericht) Hamm. The LAG considered the tabular form of the reference to be sufficient, against which the plaintiff successfully appealed. 

The Federal Labour Court ruled that the previous instance had wrongly assumed that a report in the form of a table of school grades met the statutory requirements for a qualified employer's reference. This is measured, differently than a school report, straight not after the degree of the reaching of fixed learning goal defaults or written achievement proofs. A qualified reference according to Section 109 GewO is supposed to contain an individualised performance and behavioural assessment in order to serve as a basis for personnel selection, in particular for future employers. As a rule, only a reference formulated in continuous text would do justice to this individual assessment of the employee's performance. The individualisation of the performance and conduct assessment of an employer's reference in the continuous text also applied irrespective of whether such an assessment was regularly expected or was customary in business life. The Federal Labour Court now referred the proceedings back to the Court of Appeal because the Court of Appeal was unable to decide for itself on the precise content of the reference to be issued due to the lack of concrete findings by the Court of Appeal on the activities performed by the plaintiff and his work performance. In making its decision, however, the appellate court was not bound by the wording of the "school report card" or the plaintiff's pleadings. The appellate court may reformulate the entire report itself. 

Practical advice

With this decision, the Federal Labour Court has once again established parameters for the issuance of qualified job references. Despite the tendency towards at least partial tabular presentation of job references, the Federal Labour Court has clarified in this exaggerated case of tabular presentation in "school grade form" that the employer regularly only meets the requirements for a qualified job reference by means of an individual continuous text. Employers are therefore well advised to formulate their references in the classic continuous text and to have them checked by experts if there are doubts about the content. However, it still applies that the standard for the wording and expression of a reference is a benevolent, reasonable employer, who, however, has a margin of appreciation in this respect (constant case law of the BAG, e.g. 15 November 2011 - 9 AZR 386/10). The limit of this benevolence is determined in particular by the requirement of truthfulness of the testimony and the requirement of clarity of the testimony expressly standardised in Section 109 (2) GewO (BAG of 14 October 2003 - 9 AZR 12/03). 

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