What Should Be Considered Regarding Employment References?

The following outlines what to consider when drafting employment references, what the case law regarding references entails, and why reaching an agreement on the content of the reference is sensible, as well as how such an agreement can be achieved.

According to Article 330a, paragraph 1 of the Swiss Code of Obligations (CO), an employee may request a reference from their employer at any time. The reference must state the nature and duration of the employment relationship, as well as the employee’s performance and behavior (referred to as a full reference). This is distinct from an employment confirmation, which only addresses the nature and duration of the employment relationship. According to Article 330a, paragraph 2 CO, an employment confirmation must be issued upon the employee's special request, meaning that a full reference must generally be provided unless the employee explicitly requests only an employment confirmation. An exception exists for employment relationships of short duration (i.e., approximately six months or less), where the employer cannot reliably provide statements about the employee’s performance and behavior. The employee may also request both a full reference and an employment confirmation simultaneously. The shorter the employment relationship, the shorter the reference can be.

The employer is not obliged to create a reference on their own initiative. Therefore, the employee must request the reference from the employer. However, the employer is free to issue a reference voluntarily.

For ongoing employment relationships—meaning those that have been terminated but not yet concluded—a so-called interim reference should be issued, which is typically referred to as such. The interim reference is to be framed in the present tense. Any statements regarding the potential impending termination should not be included in the interim reference. In contrast, evaluations in the final reference, which is generally referred to as the employment reference, must be formulated in the past tense.

The employment reference must adhere to the following principles:

• Clarity: The language of the reference must be clear, unambiguous, and comprehensible; the use of secret signs or codes is prohibited.
• Truth: Only objective facts should be documented. No accusations, assumptions, insinuations, or knowingly false claims should be included in the reference.
• Goodwill: The employer has a duty of care towards the employee even when formulating the reference. They must not unnecessarily hinder the employee’s economic or professional advancement. Therefore, the employer is generally obliged to provide a favorable assessment of the employee. If there are certain circumstances or facts whose mention could negatively affect the employee’s assessment but are not of significant weight to necessitate their inclusion in the reference, those statements should be omitted. This is particularly true for isolated incidents.
• Completeness: The employer must consider all significant circumstances that can provide insight into the employee’s performance and behavior.
• Individual Assessment: The employer must engage in a detailed evaluation of the employee's performance and behavior. This means the employer should avoid using pre-formulated, generic phrases or standard references.

Unless otherwise indicated by the employer, the employee can assume that their performance and behavior are good. Case law generally starts from the premise of a favorable assessment. Consequently, in a judicial evaluation of the reference, if the employee desires a better assessment in certain areas, they must provide corresponding evidence. Conversely, if the employer wishes to provide a poorer assessment, they bear the burden of proof for that. In court proceedings, the usual means of evidence are available (notably documents, witnesses, written statements, experts, on-site inspections, and party inquiries), with documents and witnesses typically holding the greatest importance in practice.

Documents of significance include employee evaluation records, warnings, and similar materials. Therefore, it is generally advisable for employers to conduct employee evaluation discussions regularly during the course of employment and to document these discussions, ensuring they are signed or providing the employee with other written communications about their performance and behavior. In our opinion, employees should be informed of any performance and behavior issues as a result of these discussions, as they may otherwise assume that their performance and behavior are satisfactory. It is advisable not to gloss over an employee’s performance and behavior out of concern for their feelings or to keep them in good spirits, nor should the opposite occur. Conversely, employees should express their disagreement with any poorer evaluations or their belief that they deserve a better assessment during these evaluation discussions or in relation to other written communications/warnings. If the employer subsequently agrees with such requests for changes or contrary representations made by the employee, the employee should ensure that these changes are documented in the relevant record or in a written addendum.

If the employer does not wish to conduct regular employee evaluation discussions, they may also communicate their views regarding the employee’s performance and behavior through other means. In such cases, it is advisable for these communications to be documented in writing and, if possible, signed by the employee or at least delivered in a verifiable manner. Conversely, the employee has the opportunity to request an interim reference regularly to obtain an evaluation. If the employee disagrees with the corresponding assessment, they should strive to timely effect a change to the reference.

There are also certain other situations where it makes sense for the employee to request an interim reference if one is not independently created by the employer. This is particularly the case in situations such as an impending change of supervisor, the transfer of the employment relationship to another employer (e.g., due to a company sale, merger, or division), emerging issues with other employees, or if a job change is on the horizon, whether due to the employee's impending resignation or termination by the employer.

In general, it makes sense for both employers and employees to try to reach an understanding regarding the content of the reference. Legal disputes over employment references are costly and typically take a long time. They rarely yield the desired outcome. It is also advisable for the employer to provide the employee with a draft of the reference for feedback beforehand, so that a constructive dialogue about the content of the reference and the evaluation can begin from the outset.

Luzern, April 23, 2020

Simeon Beeler