BAG decision: Re-inclusion of the “thanks and wishes for the future” wording in the reference letter

Facts 

The plaintiff was employed by the defendant from August 2017 to February 2021. After the plaintiff terminated the employment relationship, the defendant issued her a reference containing the “thank you, regrets and wishes for the future” wording. Since the plaintiff was not satisfied with the performance and conduct assessment in the reference, she asked the defendant twice for appropriate changes. The defendant corrected the reference each time. While the first correction still contained the closing statement in full, the last reference no longer contained this favorable closing statement. The plaintiff demanded the re-inclusion of the “thanks and wishes for the future” wording before the labor court. The labor court upheld the claim. The Regional Labor Court and the Federal Labor Court confirmed this ruling. 

Legal appraisal 

With reference to its decision of January 25, 2022 (case no. 9 AZR 146/21), the German Federal Labor Court initially emphasized that the employee was generally not entitled to a “thanks and wishes for the future” wording. At the same time, based upon the prohibition of reprimands, it assumed an obligation on the part of the defendant to issue the reference including the requested closing statements. According to Art. 612a BGB (German Civil Code), the employer was not allowed to discriminate against an employee in a measure because the employee was exercising his rights in a permissible manner. The employee should be able to decide whether or not to exercise his rights without fear of being reprimanded by the employer. Considering the prohibition of reprimands, this employee interest should generally prevail over the employer’s interest in subsequently changing the reference’s content (which it had previously created itself) in response to the employee’s lawful conduct. The prohibition of reprimands also applied after termination of the employment relationship. 

Practice 

The principle that employees are generally not entitled to a closing statement in an employment reference continues to apply. The Federal Labor Court has further specified this case law with its ruling. Employers should make a conscious decision before issuing a reference as to whether and which wording should be included in the reference. Once a closing statement has been included in the reference, the employer can deviate from such wording in the amended reference only if there are objective reasons for doing so.