The content of testimonials is regularly the subject matter of disputes and disagreements between employers and employees. In its judgment of 13 December 2012 (ref. no. 9 AZR 227/11) the Federal Labor Court has now expressed its opinion regarding the frequently demanded clause of thanks and good wishes.
The plaintiff who was employed with the defendant as the manager of a building supplies store received a testimonial stating an above-average performance and behavioral rating after the termination of the employment contract. The testimonial concluded with the following sentences: "Mr. K will leave our company as of 28 February 2009 for operational reasons. We wish him all the best for the future". The plaintiff thought that the concluding sentence was insufficient and claimed that it devalued his good testimonial. Instead, the testimonial was to include the following wording: "We thank him for his cooperation for many years and wish him all the best for his future private life and career". The Labor Court held up the action, while the Higher Labor Court dismissed it upon the defendant's appeal.
The Federal Labor Court decided that the employer was not required by law to conclude the testimonials with formulations in which he expressed his thanks for the services provided by the employee, regretted his leave or in which he wished him all the best for the future. The minimum information required to be included in a simple testimonial is the kind and the duration of the work according to Section 109 (1) sentence 2 GewO [German Industrial Code] Section 109 (1) sentence 3 GewO provides that the employee may request that the information moreover covers the performance and behavior during the employment (qualified testimonial). Thus, statements as to the personal feelings by the employer are not required in a testimonial. However, concluding sentences in testimonials in which in practice the employer often expresses personal feelings such as thankfulness or good wishes are not "neutral to the assessment" but suitable to confirm or qualify the objective statements made in the testimonial on the employee's behavior and performance. If an employer formulates such concluding sentences and the employee thinks that they are inconsistent with the other contents of the testimonial the employee may only demand to obtain a testimonial without any complimentary close. In contrast, he is not entitled to claim a concluding sentence in a certain desired form.
Thus, a right of the employee to have thanks expressed in his testimonial cannot be derived from this due to the lack of a legal basis, even if in practice, particularly in testimonials stating above-average performance and behavioral ratings, the employee is often thanked for his work.
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