18 October 2024

How to get my reference letter?

  • Articles
  • Legal
  • Employment / Immigration
  • Litigation / Arbitration

The right to a work reference is enshrined in Swiss contract law. This article explains how it must be structured and how employees can enforce their claim if the employer remains inactive.

  • Martina Aepli

    Legal Partner

1. Content and form of the reference letter

According to Art. 330a para. 1 CO, every employee has the right to request a reference letter from their employer at any time. This reference letter must relate to the nature and duration of the employment relationship as well as the quality of the work performed and the employee's behaviour. The employee therefore does not have to wait until the end of the employment relationship to request a reference letter, but can also request a so-called interim reference letter during the current employment relationship.

Alternatively, the employee can also request a so-called confirmation of employment, which is limited to the type and duration of the employment relationship. The decision as to whether an employer's reference letter or a confirmation of employment should be issued lies with the employee.

It is important to note that the employee is not entitled to a specific wording of the reference letter. The employer has leeway in the wording as long as it complies with the following principles:

Truth: A reference letter must be true and objectively correct. This principle prevents the employer from portraying the employee badly for personal reasons. At the same time, however, it also protects the employer from having to provide positive assessments that do not correspond to reality.

Completeness: The reference letter must contain all essential information that is relevant for the assessment of the employee. This means that not only the type of work and the duration of the employment relationship must be stated, but also the employee's performance and behaviour towards colleagues, superiors and customers. An incomplete reference letter can give the impression that important information has been deliberately omitted, which in turn can reflect negatively on the employee.

Clarity: The reference letter must be worded in an understandable and transparent manner. No coded formulations or hidden references that disguise the actual nature of the assessment may be used. This serves to protect the employee, as coded wordings are often used to provide hidden negative references that are not immediately recognisable to laypersons but can be easily interpreted by experts.

Individuality: Each reference letter must be tailored to the specific employee and their specific employment relationship. Standardised text modules relating to performance or conduct that are used for all employees are inadmissible as they do not do justice to the individual assessment.

Benevolence: The reference letter must be formulated in such a way that it does not unnecessarily impede the employee's professional advancement. However, this does not mean that the employer is obliged to issue a dishonestly positive reference. A balance must be struck between the principle of truth and the principle of goodwill. Negative statements may only be made if they are objectively justified and correspond to the truth.

2. Procedural enforcement of the right to a reference letter
2.1 When do I have to sue?

In principle, a legal action is possible if an employer does not issue the desired reference letter or does not issue it correctly. There are no standardised legal requirements as to the period within which the reference letter must be issued. As a rule of thumb, a period of up to two weeks for a reference letter (not for the confirmation of employment) can be considered customary and appropriate. In exceptional cases, particularly in large companies, longer periods may also be justified. Even if these deadlines are not adhered to, legal action should first be threatened and not initiated immediately, especially as litigation often takes a long time and incurs considerable costs.

It is important to note that the right to a reference letter does not expire over a long period of time. The employee has the right to request a reference letter for up to ten years after termination of the employment relationship. In practical terms, however, it can be very difficult - for both sides - to discuss a reference letter after such a long period, which is why it is generally advisable not to wait for years.

2.2. How should I sue?

If a dispute arises over a reference letter, the employee has various legal options for enforcing their claim:

Action for the issue of a reference letter: This action is brought if the employer does not issue a reference letter although the employee has requested one. In such a case, the court can oblige the employer to issue a reference letter. According to the latest case law of the Federal Supreme Court, in this type of action the employee has the option of either bringing a general action for the issue of a reference (without specifying a concrete wording) or demanding the issue of a reference with a specified wording. Both options have advantages and disadvantages:

If the employee "only" requests the certificate to be issued without specifying the wording, this can often be enforced in so-called legal protection in clear cases (“Rechtsschutz in klaren Fällen”). This procedure comes into question if both the facts of the case and the legal situation are clear. It has the advantage that it is significantly shorter than the ordinary (or simplified) process and is therefore quicker and cheaper. In this case, however, the employee has no certainty as to which text the employer will issue and it is possible that a second procedure for the correction of a reference will have to be sought at a later date.

If the employee is suing for the issue of a certificate with a specific wording, this cannot be done via legal protection in clear cases. It requires a complete complaint with the corresponding requirements and the corresponding density of justification, which is a very high hurdle for laypersons. However, it is clear that at the end of the procedure, a fully formulated certificate will be issued and no second procedure will be necessary. In this context, it is also important to note that a second procedure is no longer permitted anyway. If this procedure results in a reference that the employee does not like (e.g. because the necessary evidence could not be provided; see below), this can only be corrected in the context of appeal proceedings. Proceedings for the correction of a legally determined reference text are excluded.

Action for correction of the reference letter: This is brought if the employee is of the opinion that the reference issued does not comply with the aforementioned principles. In this case, the employee must formulate the text they wish to have changed in the reference letter themselves and submit it to the court as an application. The court will then examine whether the passages in question actually need to be corrected.

2.3 Who has to prove what?

The question of the burden of proof arises in every legal dispute. The principle applies that the party must prove the facts from which it derives rights.

When it comes to issuing an employer's reference letter, it's simple: there must be an employment relationship and the employee must have requested a reference letter. If these circumstances are proven (or undisputed), the reference letter must normally be issued.

In the case of an action for correction, the burden of proof generally lies with the employee. The employee must prove that the statements in the reference letter are not true or that they are incomplete or misleading. This can be done by means of interim reference letter, work logs or other documents that prove the employee's actual work performance.

However, employers also have a duty to justify their negative assessments. For example, if they make a negative statement about the employee's behaviour in the reference letter, they must be able to explain in a legal dispute which facts support this negative assessment. If the employer fails to do so or refuses to cooperate, the court can rule in favour of the employee and order the reference letter to be corrected.

2.4 Conclusion

Even if an employer's reference or certificate is a fundamentally simple topic, the procedural enforcement can be associated with various hurdles. It is worth thinking through the issue from the outset and considering which requests to make in a specific case in order to avoid any unpleasant surprises later on. We will be happy to assist you in this regard.

Click here to learn more about our expertise:
Back