In the course of the termination of an employment relationship, the employee is legally entitled to the issuance of a reference. In principle, such a reference must only contain general information about the person of the employee, the exact name of the employer, the duration of the employment relationship and the nature of the activity. In general, there is no legal entitlement to a qualified reference beyond this.
When drafting references, the employer must avoid anything that could have a detrimental effect on the further professional advancement of the employee who has left the company. Despite fundamentally positive diction, a large number of formulations have been interpreted in the past by case law as value judgments, which do not appear to be unequivocally favorable for the employee. Superlatives therefore play a major role in the language of testimony.
In a recent decision of the Higher Regional Court of Vienna (Higher Regional Court of Vienna 21.2.2023, 9 Ra 101/22x), it had to decide on a reference letter in which the legally required content was not expressed in full, grammatically correct sentences, but was only given in the form of a merely tabular or keyword-like list. In doing so, the court took the view that such a design of the reference is not to be regarded as customary in any industry and that the deviation from the usual form is recognizable at least for potential new employers. Negative conclusions could be drawn from this. Such a tabular presentation is therefore likely to give a new employer the impression of a lack of appreciation of the previous employer towards the former employee. It could, for example, indicate an indifference or even detachment on the part of the previous employer or only a low willingness to make an effort in the formulation.
The existing prohibition of aggravation must therefore be observed in the preparation of service certificates not only in the formulation of the content, but also in the design of the form of the certificates.
For further information, please contact:
Hanna Lemberger, Lawyer
Zumtobel + Kronberger, Salzburg
t: +43 662 62 45 00
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