Based on the duty of care, the employer is obliged to issue employment reference letters to its employees when requested. The employee is entitled to a full reference letter in the form of an interim reference letter (during the employment) or a final reference letter (at the end of the employment term) as well as to a mere confirmation of employment ("simple reference letter").
In this article, we outline the essential legal requirements for a reference letter and explain certain procedural aspects.
Generally speaking, an employment reference letter must be provided in writing, legally valid and correct.
- Written form: The reference letter must be issued in a form that can be verified by text and, depending on its content, be designated as a confirmation of employment, interim reference or final reference letter. The employment reference letter must not contain any handwritten insertions or deletions.
- Legal validity: The employer (i.e., an authorized signatory) must sign the reference letter by hand or by means of a qualified electronic signature (QES) and indicate the place where the reference letter was issued. If the place of issuance differs from the employee's actual place of work, the place of work must be stated in the reference letter.
- Language: The reference letter must be written in the language spoken at the place of work. If the language spoken at work does not correspond to the language spoken at the place of work, the employee is entitled to a reference letter in both languages. For example, in case the language spoken at an international firm based in Zurich is English, while the official language in Zurich is German.
Full reference letters must provide information on the nature and duration of the employment relationship as well as on the performance and conduct of the employee. In the case of a simple reference letter, it is sufficient if the type of employment, the specific activities and the duration of the employment relationship are described.
- Type of employment: A description of the most important functions and activities that were decisive for the employment relationship is required. The focus lies on the duties and tasks actually performed and not on the contractually agreed duties and tasks.
- Duration of the employment relationship: With regard to the duration, both the start date and the end date must be stated. The reference letter's issuance date may differ from the end date of the employment contract.
- Performance and conduct of the employee: The performance and conduct statements must be descriptive and detailed so that a potential employer may form an accurate view of the employee's suitability. The performance appraisal should address the quality and quantity of work as well as the commitment, applying an objective standard customary in the industry. In the context of behavioral assessment, the relationship with other people is paramount.
Reference letter principles
The following principles must be observed when issuing a reference letter:
- Principle of truth: Statements about the nature and duration of the employment relationship are statements which must be objectively correct. Statements about performance and behavior, on the other hand, are based on a subjective assessment. The reference letter must be written in a favorable and comprehensible manner to promote the employee's career.
- Principle of completeness: A reference letter must contain all essential facts and assessments that are relevant for the overall evaluation of the employee.
Litigation and liability
In the event of disputes concerning the employment reference letters, various types of actions are available:
- The employee can file an action for performance to enforce her/his right to a reference letter.
- If the reference letter is incorrect or incomplete, the employee may file an action for rectification.
- If the employer does not issue a reference letter within a reasonable period of time or issues a reference letter that does not meet the legal requirements, the employer will be liable to the employee for any damage resulting therefrom (e.g., making it more difficult for the employee to find a job). In addition, a reference letter that contains incorrect information or conceals material incidents may lead to liability for damages against third parties.
The burden of proof that the legal requirements for a reference letter are met and that the facts stated in the reference letter are correct is on the employer. The employee, on the other hand, must prove the facts she/he asserts to obtain a more favorable reference letter.
Do you have specific questions regarding the drafting of a reference letter or are you facing a dispute in that context? Feel free to reach out to our employment law team, we will be happy to assist.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.