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11-30-2021Article

Update Employment Law December 2021

Is there a right to a regret formula in the reference letter after all?

LAG Munich 15.07.2021 - 3 Sa 188/21

Although the Federal Labor Court already ruled in 2012 that an employee is generally not entitled to the inclusion of an expression of thanks and regret as a closing formula in the reference letter (BAG, Urt. v. 11.12.2012 - 9 AZR 227/11), the courts, in addition to disputes about the correct grade, continue to be called upon to clarify in court how a closing formula should be structured.

The "usual" closing formula of a "(very) good" reference letter is: "We regret the departure of Mr/Mrs...and thank Mr/Mrs. ... for the work performed and wish him/her all the best and much success for the further professional and private future."

Decision of the Munich Regional Labor Court

In this specific case, the employee had been working for the employer since 2016. After she was asked to increase her working hours in the autumn of 2018, disputes subsequently arose with her supervisor, which ended in 2019 with the employee's own termination. While the supervisor expressed his regret in an email in response to the termination and wished the former employee all the best for the future, corresponding words were missing in the employer's reference letter.

The LAG Munich decided that the employer did not have to correct the reference. The employee had no right to the words of regret demanded of her as well as to good wishes for her private future at the end of the reference.

The Regional Labour Court (LAG) Munich left open whether there is a claim to a regret formula in principle. In any case, a regret formula was not usual for a reference with only the grade "good". A regret formula was not covered by the principle of the duty of truth applicable to employer's references. The object of the duty of truth is objectively provable facts, whereas the expression of regret is not a fact but a personal feeling. A regret formulation ("regret very much") increased by the plaintiff could only be considered in the case of a very good reference. Such a formulation would contradict the other contents of the reference and would put them into perspective.

With regard to a wish formula, the LAG Munich rejected at least a claim with regard to good wishes for the private future, as this was intended to promote professional advancement. Wishes of the employer in the closing formula therefore only extend to the professional future or generally to the future of the employee. 

Conclusion

Contrary to the fundamental decision of the BAG, the LAG Munich affirmed the employee is entitled to good wishes for the professional future. The case law of the regional labour courts is - depending on the structure of the individual case - divided on the conditions under which the employee can demand a closing formula. In its decision of 12 January 2021 (3 Sa 800/21), the LAG Düsseldorf, for example, reaffirmed its divergent case law to the BAG and clarified that an employee who has been attested to impeccable conduct and (at least slightly) above-average performance has a legal claim to the expression of thanks and good wishes for the future in the employer's reference letter. This is at least the case if there are no justified interests of the employer to the contrary in the individual case. Disputes about the wording and about a claim to the inclusion of a closing formula will continue to occupy the courts.   

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