Testimonials accompany us throughout our entire working lives and are important for our careers – this means they lead to legal disputes only too often. Negative wording, inaccurate descriptions of work performed, a lack of appreciation – disputes regarding testimonials are the most common reason for employees and employers to face each other across a courtroom.
Céline Degen, a legal expert at AXA-ARAG, answers the most frequently asked questions about testimonials and interim testimonials, and explains why it is worth fighting for a good, "positive" testimonial.
As a first step you should ask to speak to your employer. Negative phrasing is not always deliberate – sometimes it is the result of ignorance or inexperience.
It can therefore be helpful to make concrete suggestions for improvement to your employer, with examples from your day-to-day work. Alternatively, or as a second step, you could make a written request for the testimonial to be amended, attaching your own suggested changes.
If you do, it is sensible to set a deadline of around 14 days, perhaps accompanied by a warning that you will file a complaint at the end of the period set.
If your efforts meet with no success, you can pursue a claim through the courts. Before doing so, you must first make an application for arbitration. At the arbitration proceedings a further attempt will be made to reach an agreement. If this fails, you will receive authorization to take your complaint before the courts.
Your employer is legally obliged to provide you with a testimonial. You are therefore not entitled to write your testimonial yourself. Nor can your employer require you to write your own testimonial.
However, you may write your testimonial yourself provided that you and your employer agree on this and it is then signed by your employer. In these circumstances you should remember that your employer has a duty to tell the truth, and could be held liable and punished if they issue an inaccurate testimonial.
You also need to bear in mind that employees cannot normally insist on the use of particular wording. There is no legal right to demand changes relating purely to style, or to particular words or expressions that do not affect the substance of the testimonial.
The statutory limitation period for issuing or amending a testimonial is ten years. For a final testimonial, this period begins on the date that the employment relationship terminates. However, you are not allowed to abuse this right by, for example, deliberately waiting until your line manager has left the company. This could mean you forfeit your right to obtain a correction, and you will no longer be able to invoke it.
The statutory limitation period for issuing or amending a testimonial is ten years.
The main point of a testimonial is to give information about the employee's performance. A future employer should be able to form an accurate picture of the applicant's suitability. The statement of performance should be clear and specific.
How much detail to include will depend on a number of factors, such as length of employment. For long-term employment relationships, a single sentence would not satisfy the legal requirements. It's also important for the statement of performance to cover the employee's entire range of activities.
If, for example, you have taken on management responsibilities in addition to your day-to-day duties, the statement of performance must include these too. It is also usual to give an overall assessment, in addition to a detailed statement of performance which appraises each individual activity separately.
A testimonial should help the employee find a new job, and encourage their career development. Testimonials must therefore be phrased positively. If in doubt, the wording should err on the positive side and the person's achievements should be shown in a more, rather than less, favorable light.
Nevertheless, negative facts may, and indeed must, also be mentioned if they are important for the overall assessment. They should, however, be worded gently.
Efforts to make a testimonial positive should not be pushed to the point that it becomes untruthful. The whole purpose of a testimonial – i.e. to give future employers a truthful and informative impression of the employee – takes precedence over positivity. However, negative yet truthful facts should only be mentioned if they are significant and relevant to the overall picture. Minor, unimportant incidents should not be mentioned.
The testimonial must have a legally valid signature. It therefore requires a handwritten signature, and you are entitled to receive an original copy. Two signatures are required where joint signatory authority with a minimum of two signatures is in force, but otherwise a single signature is sufficient.
The signatory must also be identifiable, so an illegible signature does not suffice. Furthermore, the testimonial must be signed by persons who are senior to the employee within the company. This cannot be delegated to an external personnel office or law firm, for example. However, you have no right to insist that the testimonial is signed – or not signed – by a particular person.
According to the statutory regulations, you may request a testimonial from your employer "at any time". It must contain information on the type of work and the duration of the employment relationship as well as an assessment of your performance and conduct. In practice, however, you are required to give a legitimate reason for the request. These reasons often include a change of line manager, duties, or department, or restructuring, a planned job change, or termination of the employment. If you have a legitimate reason, the duration of your employment is less important and you can request an interim testimonial even after a short period in post.
If you simply want your line managers to tell you what they think of your skills and progress, they can do this by means of an employee evaluation or in an interview – there is no basic entitlement to a formal interim testimonial. Nor are you entitled to regular interim testimonials without a particular reason.
No. However, since you need to have a legitimate reason, as mentioned above, your line manager is allowed to ask what this is. If you cannot or do not wish to give such a reason, the manager may decline to issue an interim testimonial.
Planning to change jobs is in principle a legitimate reason for requesting an interim testimonial. You are not obliged to volunteer the reason why you are requesting the interim testimonial, and your boss may not ask you.
If they do, however, and you tell them you are applying for jobs, this may have positive or negative effects. On the one hand, your boss may wish to retain you, and make efforts to do so. On the other, your loyalty to the company may be called into question, with negative consequences for you.
There is no specific legal deadline for producing a testimonial; this is governed by the general principle of good faith. Your line manager should be allowed a reasonable period in which to issue the testimonial. In practice it is assumed that this is normally possible within about two weeks.
However, it depends on the exact circumstances of each case. If your line manager is on holiday, for example, or the company is in the middle of the busy year-end period, this should be taken into account. If you keep being fobbed off for no reason, it may be helpful to ask your line manager once again in writing, specifying an appropriate deadline.
A change of line manager is a legitimate reason for requesting an interim testimonial, so you may certainly ask for one. Whether you wish to do so will depend on a variety of factors. In these circumstances it's important to bear in mind that an interim testimonial is often used as the basis for a subsequent final testimonial.
Don't forget that you may find it harder to request changes or even take legal action if you are still working for the company.
A change of line manager is a legitimate reason for requesting an interim testimonial.
Legally, a testimonial should contain information on the type of work and the duration of the employment relationship as well as an assessment of the employee's performance and conduct. The content of an interim testimonial is no different from that of a final testimonial, apart from the concluding paragraph. An interim testimonial is also written in the present tense, since the employment relationship is still in existence (in contrast to a final testimonial, which is written in the past tense).
A formally issued interim testimonial is binding on the employer, irrespective of which line manager wrote the testimonial. If the final testimonial is less favorable than the interim one, the burden of proof rests with the employer. She or he must explain why the assessment is now less favorable.
The shorter the period between the interim and final testimonials, the more serious the factors need to be to justify a poorer assessment. Individual, minor incidents – even if the employment relationship is strained – may not be given too much weight, particularly since a final testimonial should report on the entire duration of the employment relationship.
It is a different situation if the interim testimonial was demonstrably inaccurate. If, for example, the employer subsequently finds out about serious misconduct at work, a poorer final testimonial is justified. In some circumstances the inaccurate interim testimonial can even be recalled in such a case.
In principle there is no entitlement to a very good testimonial. A testimonial should be truthful and give an objective assessment of your performance and conduct. The benchmark standard depends on the industry and the employee's experience and position in the company.
If you have not received a very good testimonial, it is up to you to prove that you deserve a rating of "very good". You could cite previous interim testimonials or employee evaluations for this purpose.
According to the statutory regulations, you may request a testimonial from your employer at any time. It must contain information on the type of work and the duration of the employment relationship as well as an assessment of your performance and conduct – this is known as a full testimonial. At the particular request of the employee, a testimonial may restrict itself to details of the type and duration of the employment relationship; this is known as a confirmation of employment.
You are therefore entitled to a full testimonial in all cases.
It is possible to request a confirmation of employment instead of a full testimonial right from the start, or you can ask for one when a full testimonial has already been issued. If you are not happy with the full testimonial, you can ask for a confirmation of employment as well. The latter is not allowed to mention the reason for termination – in your case, dismissal without notice.
According to case law, a testimonial may mention an illness and a related incapacity to work
- if it had a substantial impact on the employee's performance or conduct
- or it brought into question the employee's fitness to carry out their previous duties and thus constituted an objective reason to terminate the employment relationship
- or it covered a significant portion of the total duration of the employment relationship.
If none of the above is applicable, no mention may be made because it is not relevant to the overall picture.
You are entitled to a full testimonial in all cases.
Yes, it is. For a testimonial it is the duties actually performed that count, not those that were agreed in the contract. It is not possible to assess your performance of a task you have never carried out. Furthermore, the testimonial must be true and not give a false impression of the practical experience you have gained.
A testimonial does not have to mention the reason for departure. You as the employee may however ask for the reason for departure to be mentioned – in your case, because you are leaving of your own volition. You are also allowed to request that the testimonial says nothing about it.
In the latter case, however, it will usually be assumed that your employer terminated your employment. If you yourself terminated the employment relationship, you should insist on this being mentioned. One exception to this principle would arise if not stating the reason for departure would result in an untrue testimonial and a false impression. This might be the case if the employee has been guilty of serious professional misconduct which would normally justify instant dismissal. The employer would then be entitled to mention the reason for your departure even without your consent.
The concluding paragraph of the testimonial is not subject to the same rules as the reason for departure. It generally thanks the employee for their contribution, expresses regret at their departure, and wishes them well for the future. However, since this is an expression of subjective feeling rather than an objective evaluation, you are not legally entitled to insist on it. You therefore cannot demand an expression of regret at your departure.
As an employee, you are not entitled to insist on particular phrases being used. Your employer is free to choose the wording. This means that if there are several ways of saying the same thing, the employer can select the one they prefer.
Coded messages are basically forbidden. However, employees often see a hidden code in certain phrases. It is my view that this ban should not be interpreted too strictly, because otherwise testimonials would never be able to contain standard phrases.
Hidden messages in a testimonial are known as "codes". These may take the form of particular markers or wording. For experienced readers of testimonials, positive-sounding phrases can often conceal negative meanings. This may result in misinterpretation, thus breaching the principle of clarity and good faith.
A testimonial should be drafted in a clear, understandable, and unambiguous way. Nowadays, everyone is familiar with the meaning of certain codes such as "always made an effort" (which implies that the employee's performance was unsatisfactory despite their efforts). Some of the phrases commonly used in testimonials (e.g. "to our satisfaction", along with intensifiers such as "always" or "full", which correspond to a scale of grades) may also be thought to contain coded messages. The decisive factor is whether the wording selected is ambiguous and could therefore be misinterpreted.
Failing to mention certain points in a testimonial may also constitute a kind of code. If, for example, the employee's behavior towards colleagues and clients is rated as good, but nothing is said about their behavior towards managers, a criticism may be inferred.
In this connection it is important to mention the principle that testimonials should be phrased positively. Since negative facts should not be described in harsh language, it is usual and permissible to use moderate wording when referring to them. This is not a code, but is intended to work in the employee's favor.
The important thing is to consider the testimonial as a whole, taking account of the overall assessment it presents. If it attests to your commitment and gives a positive evaluation of your performance, all is well. On the other hand, if it mentions your commitment but not your performance, this is open to a negative interpretation. You should therefore read your testimonial with a critical eye, taking particular note of how fully it assesses your performance and conduct.
It is permissible to mention absences in a testimonial if they account for a substantial portion of the total length of the employment contract. In other words, if not mentioning them would give a false impression of your experience in the job.
This is likely to be the case if the employee is absent for about half of the total employment period. Important note: According to case law, mentioning an employee's absence during maternity leave does not constitute a breach of the provisions on gender equality.