Good news for all employers: The German Federal Labour Court has recently reversed the disastrous judgment of the Regional Labour Court of Berlin-Brandenburg concerning the allocation of the burden of proof with regard to assessments in employment references.
Basic principles re employment references
In Germany, upon termination of the employment relationship employees can claim for a written employment reference that contains information about the nature and duration of their employment as well as about their performance and behavior. Normally, the overall assessment of the employee´s performance is made by using a common “school-grade system” (very good resp. A – good resp. B – satisfactory resp. C – adequate resp. D – inadequate resp. E).
The overriding principle that employers have to take into account when creating an employment reference is the principle of truthfulness. According to this the contents of an employment reference have to be true because of their fundamental importance for the employer´s selection of personnel. Apart from that, in the light of the impact of employment references for the career of employees, employers have to be generous when assessing their employee’s performance. As there is a tension between the two aforementioned principles, it is acknowledged in German jurisprudence that an employment reference only has to be generous within the scope of truthfulness.
The facts of the decided case
The parties are in dispute about the question whether the performance of the plaintiff, who had been working in the defendant´s dental office, is to be assessed in the employment reference with the school grade “good” (“B”) or with the school grade “satisfactory” (“C”).
In the opinion of the Regional Labour Court of Berlin-Brandenburg an overall assessment with the school grade “good” (“B”) does not stand for an above-average performance as studies had shown that 90% of the overall assessments in employment references correspond with the school grade “good” (“B”) or better. Against this background, the Regional Labour Court of Berlin-Brandenburg held that the plaintiff did not need to prove her asserted “good” performance, but the employer had to prove the attested “satisfactory” performance and had failed to do so.
The judgment of the German Federal Labour Court
Nevertheless, the German Federal Labour Court has now allowed reason to prevail and made clear that there is no “automatic” claim for “good” overall assessments in employment references. For this purpose the German Federal Labour Court pointed out that it is irrelevant for the burden of proof how often a certain assessment in employment references is made in practice. Furthermore, the federal judges confirmed the previous jurisprudence, in which the school grade “satisfactory” forms the basis for every assessment in employment references. If an employee claims a better assessment, then he has the burden of proof in court, just as the employer has in case of a worse assessment. This also applies if employment references with the overall assessment “good” (“B”) or “very good” (“A”) are usual in the employee´s industry. Finally, the German Federal Labour Court stressed the principle in which employment references only have to be generous within the scope of truthfulness and raised doubts that the studies mentioned by the lower courts had taken this point into account.
Appraisal of the judgment of the German Federal Labour Court
The German Federal Labour Court’s point of view is to be welcomed in every respect: It is common sense that employees must prove above-average performances and employers must prove sub-standard performances in employment references. Any other handling would conflict with the accepted principles of the burden of proof and would unnecessarily trigger even more litigation in this field. And last, but not least, the judgment of the German Federal Labour Court ensures that employment references can still serve their purpose: reliable information about the performance of future employees.