Performance appraisal in the job reference – “To the full satisfaction” is good enough.

In a recent decision dated November 18, 2014 (file number 9 AZR 584/13), the Federal Labor Court confirmed its previous case law that the starting point for performance evaluation is the grade “satisfactory” (“to the full satisfaction”) as the middle grade of the satisfaction scale.

If an employee claims a better grade than “satisfactory” in his job reference, he must explain and, if the employer disputes it, also prove that he has performed better. Conversely, if an employer wants to rate the employee's performance worse than "satisfactory", he bears the burden of presenting and proving the facts on which his assessment is based.
A job reference must therefore be worded “benevolently”, but this only applies within the framework of the obligation to tell the truth, which also refers to the final grade in the certificate.
The Federal Labor Court has thus clearly rejected the differing opinion of the lower courts, which had affirmed the employee's right to the wording in the job reference “always below full satisfaction” even with only average performance. In the opinion of the Federal Labor Court, current studies used by the lower courts, according to which almost 90 % of job references are said to have the final grades “good” or “very good”, do not lead to a different distribution of the burden of presentation and proof.
Conclusion:
This means that there are considerable difficulties for an employee if he wants to legally enforce a better than average performance rating in his job reference. Whether this can succeed is a question of the individual case. A lawsuit can have a chance of success if the employee can rely on relevant performance assessments by the employer, such as those that can emerge, for example, from minutes of employee discussions or the fulfillment of target agreements.