Employment reference following a court settlement: When employees draft the text of the reference themselves

A provision in a settlement agreement which grants employees the right to dictate the content of their qualified employment reference by means of their own draft – from which the employer may deviate only for good cause – may, in principle, also be enforced by way of compulsory execution. However, if there are doubts as to whether the draft provided complies with the principle of truthfulness in references, this must be clarified in (new) proceedings to determine the facts.

Facts of the case

The employee and the employer had reached a settlement as part of proceedings concerning protection against unfair dismissal. In this settlement, the employer undertook, amongst other things, to issue the employee with a final reference. The employee was to submit his own draft for this purpose, from which the employer was only permitted to deviate for good cause.

The employee submitted such a draft. However, the employer did not issue the reference in the requested version, but modified the draft, in particular the description of duties, which it considered inaccurate in the original draft. The employee therefore applied for a penalty payment to be imposed ‘on the grounds of failure to issue the reference in accordance with the settlement agreement’.

The Solingen Labour Court (order of 22 July 2025 – 4 Ca 1144/24) dismissed the application. Whilst it regarded the provision in the reference settlement as enforceable and, in particular, as sufficiently specific, it held that the claim had been satisfied. Ultimately, the employer had issued a reference that corresponded to the draft submitted and contained only such deviations as were reasonable in light of the principle of truthfulness in references.

The Düsseldorf Regional Labour Court (order of 27 October 2025 – 13 Ta 199/25) dismissed the employee’s appeal on different grounds. In its view, the enforcement order – contrary to relevant case law of the Federal Labour Court (BAG) – was not sufficiently specific.

The decision

The BAG concurred with the lower courts only in their conclusions, but not in their reasoning. Contrary to the view of the Düsseldorf Regional Labour Court, the enforcement order was sufficiently specific. The fact that the employer was permitted to deviate from the draft ‘for good cause’ did not preclude sufficient specificity. Given their purpose of providing a basis for staff selection, employment references are subject, amongst other things, to the principle of truthfulness in references, from which no deviation is permitted even in enforcement proceedings. The fact that this may, in certain circumstances, give rise to a need for clarification does not render the content of the settlement generally unenforceable, but may, where necessary, require proceedings to be conducted anew. Thus, in this case too, according to the employer’s submission, the principle of truthfulness in references may have been breached. This must be clarified in new proceedings.

Consequences for practice

Overall, the Federal Labour Court (BAG) maintains its position on the enforcement of the so-called ‘right of proposal’. The right of proposal regarding the employment reference is widely included in settlements or termination agreements. However, the ruling highlights that even with such wording, not every conceivable subsequent dispute is ruled out, and further legal proceedings regarding the content of the reference may, under certain circumstances, be conceivable. The point of contention here is usually the – objectively verifiable – description of duties.

Practical tip

If any subsequent disputes over the wording of references – including in the job description – are to be avoided, a specifically worded draft reference must be agreed between the parties and placed on file before a settlement is reached.

If this is not possible or not desired, employers should, when granting the right to propose wording, choose a standard formulation such as that on which the Federal Labour Court (BAG) decision is based. This is, on the one hand, to ensure that the content is enforceable and, on the other hand, to retain the option of deviating from a submitted draft in order to comply with the principle of truthfulness in references.