Legal basics of the job reference
Under § 109 of the Trade Regulation Act (Gewerbeordnung, GewO), every employee has a legal right to a job reference (Arbeitszeugnis). This right applies regardless of how long the employment lasted, how it was terminated or why it ended. The reference must meet two basic requirements. It must be true and complete. At the same time, it must not harm the employee's career prospects.
There are two types of job reference. The simple job reference only states the type and duration of the employment. The qualified job reference also assesses the employee's performance and conduct. In practice, employees almost always ask for a qualified reference, because only this gives future employers meaningful information.
Salary in the job reference: prohibited in principle
One of the most important rules for job references is: salary details do not belong in a job reference. Statements about illness, pregnancy, parental leave, salary, secondary employment (unless there was a breach) or criminal offences (unrelated to work) are generally prohibited. This rule applies without exception and protects the employee's privacy.
The courts have clearly confirmed this rule. Salary details can lead to discrimination in future applications and are therefore not allowed. Neither the base salary nor details of bonuses, special payments or other pay components may appear in the job reference.
Why salary details are a problem
Mentioning salary information in a job reference carries various risks:
Risk of discrimination: A low salary could lead potential employers to draw the wrong conclusions about the applicant's qualifications or performance. A high salary, on the other hand, could lead to the applicant being seen as "too expensive".
Data protection breach: Salary details are particularly sensitive personal data. Passing them on without the employee's explicit consent breaches the General Data Protection Regulation (GDPR).
Distorted negotiations: Salary details can limit the employee's room to negotiate with new employers and make fair salary negotiations harder.
Exceptions and borderline cases
Although salary details are prohibited in principle, there are a few exceptions:
At the employee's explicit request: If the employee explicitly asks for salary details to be included, the employer may agree. This should be documented in writing, though.
Industry-specific practice: In some specialised industries, salary details can be common practice. Here too, the employee's consent should be obtained.
Indirect references to salary: Sometimes people try to hint at the salary level indirectly, for example with phrases such as "in the upper salary range" or "paid in line with his qualifications". Such phrases are also not allowed.
What the job reference should contain instead
Instead of salary details, employers should include the following information in a qualified job reference:
- Personal details: Name, date of birth, length of employment
- Job description: Detailed tasks and areas of responsibility
- Performance assessment: Assessment of professional skills and quality of work
- Conduct assessment: Behaviour towards managers, colleagues and customers
- Closing statement: Thanks and good wishes for the future
Legal consequences of mistakes
Breaching the rules can have serious consequences:
Claims for damages: If prohibited salary details cause harm, the employee can claim damages.
Correction of the reference: The employee can demand the removal of prohibited details and a corrected reference.
Data protection penalties: Data protection breaches can lead to fines.
Practical tips for employers
To write legally sound job references, employers should keep the following in mind:
- Use standard templates: Develop consistent templates that meet all legal requirements
- Train your staff: Train your HR team regularly on current legal developments
- Four-eyes principle: Have every reference checked by a second person
- Follow current case law: In November 2023, two courts ruled on the content and form of a job reference
- Write references promptly: Write references as soon as possible after the employment ends
Deadlines and limitation period
The right to a job reference becomes time-barred after three years under § 195 BGB. Employers should therefore still be able to issue a proper reference after a longer period. It is advisable to keep all relevant documents and assessments accordingly.
Reference language and ratings
The baseline grade for a reference is "satisfactory". Employers must stick to the established reference language, which uses a coded system. The principle of goodwill applies. This means the assessment must not make it harder for the employee to find a job.
Current developments
Case law on job references keeps evolving. Disputes over the content of job references lead to more than 30,000 court cases every year. Employers should therefore always stay informed about current rulings and adapt their reference practice accordingly.
Conclusion
The job reference is a complex legal instrument that requires careful attention to all rules. The clear rule is: salary details have no place in a job reference and can cause serious legal problems. Correct reference language and ratings are also crucial. Mistakes here can have serious legal consequences too and often lead employees to take their case to the labour court. Employers should therefore focus on the content required by law, choose the reference language carefully and always show goodwill towards the employee. With the right preparation and knowledge of current case law, you can write legally sound job references that serve the interests of employer and employee alike.
Sources
Legal text of § 109 GewO on Gesetze im Internet (Federal Ministry of Justice)
