The employer’s reference always gives rise to debate. This is understandable, as references are important for the employee’s future career advancement. The following, therefore, is a summary of the most important principles in connection with the employer’s reference.
The employee may at any time request a reference from the employer, which not only speaks about the nature and duration of the employment relationship, but also about his performance and conduct (Art. 330a para. 1 SCO). On the one hand, such a so-called qualified reference or full reference is intended to promote the employee’s professional advancement and is therefore formulated in a compassionate manner. On the other hand, it is intended to give future employers as true a picture as possible of the employee’s activity, performance and conduct, which is why it must in principle be true and complete (BGE 136 III 510 E. 4.1 with further evidence). Therefore, a qualified reference may and must also mention negative facts with regard to the employee’s performance, insofar as these are relevant for his overall assessment. In the case of incorrect, incomplete or ambiguous content or other violations of the principles of references, the employee is entitled to a rectification claim, which he can enforce by legal action if necessary, whereby the employee must include in his legal action a new text or concrete proposals for amendments. In rectification proceedings, great weight is attached to existing interim references and staff appraisals. Deteriorations in the final reference compared to an interim reference issued shortly before require that significant changes have occurred since the interim reference, which justify a different assessment. Although in principle the employee is not entitled to a specific formulation and the courts exercise restraint with regard to subjective expressions in references, value judgements also remain in principle subject to judicial review. As a rule, however, the court will reject petty requests for corrections to a reference that is in itself correct.
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