Appraisal of performance in references

BAG, judgment dated 18.11.2014, 9 AZR 584/13

In a dispute concerning correction of a reference, the employee bears the burden of producing evidence and proof to support the claim that his/her performance was “good” and not merely “satisfactory” as stated by the employer.

Under Section 109 Sentence 2 GewO (Industrial Code) employees are entitled to a qualified employment reference including a final overall appraisal (BAG dated 14.10.2003 – 9 AZR 12/03). This appraisal is frequently the all-important sentence for personnel managers. To this end, a grade scale has become established in practice that is expressed through the following formulations:

Use of the formulation “to our complete satisfaction”

• „always to our utmost satisfaction” = grade 1
• „always to our complete satisfaction” = grade 2
• „always to our satisfaction” = grade 3
• „to our satisfaction” = grade 4
• „overall to our satisfaction” = grade 5

Matter in dispute: overall grade

If employer and employee disagree concerning the overall grade, the question arises in a legal dispute for the correction of a reference as to who is required to demonstrate which quality of performance.

Federal Labour Court

In this respect, the Federal Labour Court (BAG) has thus far adopted a pragmatic approach. It assumes an average appraisal, i. e. satisfactory, as mean point of the grade scale. The burden of producing evidence and proof for a poorer appraisal (“adequate” or “poor”) lies with the employer, for a better appraisal (“good” or “very good”) with the employee (BAG dated 14.10.2003 – 9 AZR 12/03).

Labour Court Berlin and LAG Berlin-Brandenburg

In the case at hand, the Labour Court Berlin and the LAG Berlin- Brandenburg had broken with this case law by assuming that in modern-day business life “average” is no longer a satisfactory but rather a good performance. This was confirmed by studies consulted, which showed that almost 90 percent of the employment references examined contained the overall appraisal good or very good. Consequently, the employer bears the burden of producing evidence and proof if he wishes to issue a satisfactory (= below average) appraisal. The employee is only required to demonstrate a very good performance.

BAG affirms previous opinion

The BAG did not agree with the opinions of the previous instances and, by contrast, again affirmed its previous position. “Average” remains a satisfactory and not a good performance. The possibility cannot be excluded that the studies consulted included accommodation references. An employment reference is governed by a duty to tell the truth. There is no reason to alter the principles of the allocation of the burden of producing evidence and proof.

Summary

The BAG affirms its previous case law. The employer bears the burden of producing evidence and proof for an adequate or poor overall appraisal, and the employee bears the burden of producing evidence and proof for a good or very good overall appraisal.