Interim reference in employment law - 6 answers from a lawyer
An interim reference provides the employee with information about their current activity, their own qualifications and their social conduct in the company. In this respect, it corresponds to the normal employer's reference, which can regularly be requested by the employer upon termination of the employment relationship in accordance with Section 106 GewO. The only difference is that the employment relationship continues even after the reference has been issued.
There can be many reasons for requesting an interim reference, such as upcoming salary negotiations or an application for another job. Many employees, but also employers, do not know much about the topic of interim references in employment law. We therefore clarify the most important questions for you in this article.
The most important facts about the interim report in the summary:
- Although there is no statutory entitlement to the issue of an interim reference, such an entitlement may arise from a collective agreement or employment contract as well as from a works agreement.
- Employees can request the issue of an interim reference if they are entitled to one or can assert a legitimate interest.
- There is no statutory deadline for issuing an interim reference. However, 2 - 3 weeks is usual.
- If the employer refuses to issue an interim reference without justification, it is possible to persuade them to do so through binding discussions with the support of a lawyer or ultimately to force them to do so through the labor court.
- A simple reference only contains information about the activity and the duration of employment. A qualified reference also contains an assessment of performance and conduct.
- You should pay attention to the completeness of the content and the wording used. It is advisable to have the reference checked by a competent lawyer.
Do you have individual questions about employment references? Get in touch with our lawyers now:
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Table of contents:
- Am I entitled to an interim reference?
- In which cases am I entitled to an interim reference?
- Is there a deadline for issuing the interim certificate?
- What can I do if the employer refuses to issue an interim reference?
- What information must an interim reference contain under employment law?
- What should I pay particular attention to in the interim report?
Am I entitled to an interim reference?
In contrast to the final reference, employees are not legally entitled to an interim reference. However, it is possible that such an entitlement may arise from a collective agreement, the employment contract or a works agreement. This depends on the specific individual case. As lawyers specializing in employment law, we will be happy to check for you whether you are entitled to a reference. We can also support you in enforcing it. Please contact us.
In which cases am I entitled to an interim reference?
As an employee, you are only entitled to an interim reference if, as described above, you are entitled to an interim reference or have a legitimate interest in one. Otherwise, the employer can also refuse to issue an interim reference.
Such a legitimate interest may arise, for example, if you are transferred to a new position or have a new superior in the future. The interim reference ensures that you are also assessed according to your performance by the superior under whose supervision you performed your work in the past period. In particular, if a superior with whom you get on very well is leaving the company, you should ask them to issue you with an interim reference beforehand.
Anyone who will be absent for a longer period of time, for example due to an upcoming parental leave, a longer period of further training or a longer period of unpaid special leave (sabbatical), can usually assert a justified claim for the issue of an interim reference. In these constellations in particular, it is often impossible to predict with certainty whether the person concerned will return to the same tasks in the company under the same supervisor following the time off. When the employee returns to work, he or she is often assigned to a different position or in any case under a new superior.
The situation is similar in the case of a transfer of business pursuant to Section 613 letter a BGB. The transfer of business is usually accompanied by changes in the relevant responsibilities and in the HR department. Therefore, in the event of a transfer of business, it is even recommended to apply for an interim reference to be issued. The same applies if the company is threatened with insolvency proceedings.
Employees who have been with the company for a long time but have not yet received a performance appraisal can also assert a legitimate interest. This follows from Section 82 (2) BetrVG, according to which the employee is entitled to a regular performance appraisal.
Ultimately, the employee's wish to leave the company and therefore apply for a job is also a legitimate interest in the issuing of an interim reference.
However, when submitting the application, be aware that the employer may suspect that you wish to leave the company. In practice, this suspicion can have an impact on the content of the interim reference. It is therefore advisable to proceed with caution. For example, you can dress up the request for an interim reference accordingly, e.g. with the request for an internal reorientation.
Is there a deadline for issuing the interim certificate?
No, there is no statutory deadline for issuing an interim reference. A period of 2 - 3 weeks is usual. If the employer does not hand over the interim reference within this period, it is advisable to request it again in writing and set a deadline of around two weeks.
What can I do if the employer refuses to issue an interim reference?
If the employer refuses to issue an interim reference, you can assert your claim before the labor court and force the employer to issue an interim reference. However, this step should not be taken prematurely, as it could also have a negative impact on the content of the reference and the existing employment relationship.
It is therefore preferable to seek a discussion with the employer first. If this is unsuccessful, it is advisable to try to resolve the conflict out of court with the support of an experienced lawyer. Only if this step is also unsuccessful should recourse to the labor court be the last resort.
What information must an interim reference contain under employment law?
It depends on whether a simple or a qualified reference is issued. A simple reference only contains information about the employee's activity and length of service. However, if the employee requests a qualified interim reference, this must also contain an assessment of the employee's performance and conduct. The employer must issue the reference in accordance with the principle of truth and goodwill. This assessment must therefore be comprehensible and must not contain any unnecessary negative assessments.
The assessment of an interim reference can also have a positive effect on the subsequent final reference. Although the employer can deviate from the assessment in the interim reference, the employer must also be able to justify the deviations in a comprehensible manner, especially if there is only a manageable period of time in between.
A qualified interim reference ideally contains the following elements:
- Personal details of the employee and start of the employment relationship,
- the job title and the associated areas of responsibility and function within the company,
- the qualifications and the services provided,
- Assessment of behavior,
- the reason for issuing the certificate and
- optionally a final sentence, combined with thanks to the employee and positive wishes for the future.
What should I pay particular attention to in the interim report?
A key point is the completeness of the reference. In particular, you should make sure that all relevant information relating to your job description and your assessment is included.
It is also widely known that the statements made in the reference are codes for evaluating the employee. Even statements that initially sound positive may paint a massively negative picture of the employee. The same applies to the interim reference. This negative image is painted even if the employer is not even aware of it and actually wanted to issue a positive reference.
A typical word for this is, for example, the phrase "endeavors". If formulations containing this word appear in the reference or interim reference, all alarm bells should ring.
It is therefore always advisable to have your employment reference or interim reference checked by a competent lawyer. If necessary, this can ensure that your employer revises the reference in your favor. If your employer is not prepared to do this, it may be possible to force them to do so in the labor court.
Lawyer for the enforcement and review of employment references
Do you need competent legal advice for the review or enforcement of an employment reference or interim reference under employment law? Our lawyers will help you quickly and easily with all employment law issues and problems.
Contact the law firm Haas und Kollegen now:
Rudolf-Diesel-Str. 5, 65760 Eschborn near Frankfurt
