What does an employment reference look like? Contents and legal principles

An employment reference is a document that describes and, in most cases, evaluates an employment relationship. It often contains information on the qualifications and behaviour of an employee in a company. However, minimalist references are also possible; these merely state the duration and nature of the employment relationship. Employers are legally obliged to issue an employee with a reference on request. References are usually issued at the end of an employment relationship, but employees can also request interim references at any time.

When is a reference required?

Employees often request a reference when they want to apply for a new job. In this case, it makes sense to request a reference before giving notice. It is always legitimate to request an interim reference. On the other hand, a reference can also serve as feedback, allowing employees to clarify their position and performance. This provides them with information about their performance and the opinion of their employer. This can help with further development and motivate employees to perform better in the future.

Issuing an employer's reference is one of the obligations of employers. This is regulated in the Swiss Code of Obligations (CO). Employees do not have to give a reason for this. Article 330a, paragraph 1 of the CO states the following on this subject: "The employee may request a reference from the employer at any time, stating the nature and duration of the employment relationship as well as the employee's performance and behaviour."

Typical references are usually issued at the end of an employment relationship. References issued during the course of employment are more commonly referred to as interim references. Due to the legal situation, the employer is obliged to issue both types, as an employee can request a reference at any time.

Incidentally, the employer's reference is one of the mandatory requirements of employment contracts (Article 362 CO). This means that it may not be tied away by employment contracts or agreements. This would only be permissible if the clause in question was in favour of the employee. If there is a clause in your employment contract that excludes the issuing of interim references, this is null and void.

Do apprentices have a right to a reference?

Apprentices also have a right to a reference. This is stipulated in Article 346a CO. According to this article, employers are obliged to issue an apprenticeship certificate for the duration of the apprenticeship and the professional activity learnt after completion of the apprenticeship. At the request of the apprentice, the certificate must also contain information on the skills, performance and behaviour of the person concerned.

Employment references are always issued in writing. However, there are different forms that can be used. In general, a distinction is made between the following two types of references.

Simple reference

A simple reference is basically just a confirmation of employment. The term partial reference is also used synonymously. This document is very minimalistic and only contains the most important information about the employment relationship. It usually only contains the duration and type of employment relationship. At the employee's request, the employer must issue a reference containing only these minimal details. Legally, this is based on Article 330a, paragraph 2 CO, which states:

"At the special request of the employee, the reference shall be limited to information on the nature and duration of the employment relationship."

Full reference

The full reference is the typical employer's reference, which also provides information about a person's qualifications. In most cases, this type of reference is more useful for employees. They can use it to apply for vacancies and prove their suitability to potential new employers. According to Article 330a, paragraph 1 CO, this type of reference contains the following information:

• Type of employment relationship (including the person's position)
• Duration of the employment relationship (date of entry and, if applicable, date of termination)
• Performance (including special milestones)
• Behaviour towards colleagues, customers, superiors, business partners

The form and content of employment references is not specifically regulated by law. However, some information and details have become established in the past as typical contents for a reference. These include the following aspects:

Personal details of the employee

• Start of the employment relationship: Date of commencement of employment and, in the case of a reference after termination of the employment relationship, also the end date
• Company summary: Brief description of the company and its tasks and mission
• Position, duties and responsibilities: The person's function and activities in the company and what regular or special tasks they performed in this regard
• Assessment of work performance and behaviour: How the person behaves in dealings with colleagues, superiors and customers
• Signature of the line manager, possibly also company stamp

Ultimately, every reference is individual and should be tailored to the employee and their characteristics and performance.

Do references have to be in a certain form?

An employment reference is always presented in written form - anything else would hardly make sense. Under criminal law, a reference is classified as a document. According to the Swiss Criminal Code (SCC), forgery of a document or certificate of any kind is a punishable offence. According to Article 251 SCC, fines or prison sentences of up to five years can be imposed for this offence.

Employment references are subject to a number of principles that they should fulfil. Although these are not directly laid down in law, they have become established through case law and general understanding. For example, a reference should be favourably and clearly formulated, truthful and complete.

The coded formulations and codes that employers have sometimes used in the past are well known. These are statements that appear positive at first glance, but are actually a code for poorer performance. To a certain extent, this circumvents the principle of truth in order to give the reference a favourable appearance. The use of such codes is now largely no longer permitted. More and more companies are moving towards creating more transparent and honest references. These can also contain negative points, but should remain constructive. Some employers include these points of criticism with suggestions for improvement, for example.

Tip: If there is a coded formulation in your reference that could cause misunderstandings, make your employer or line manager aware of this. You have the right to have your reference corrected so that it fulfils the four principles mentioned above.

This must not be included in the reference

A reference should reflect a person's general performance in the workplace. Things that have nothing to do with the employment relationship do not belong in a reference. This includes personal political or religious views or other private matters. In most cases, one-off incidents also have nothing to do with a person's overall work performance (e.g. if the person was late for work once). A reference should paint as complete and professional a picture of the employee as possible.

How long is an employee entitled to a reference?

The law does not conclusively regulate how long after the termination of an employment relationship a reference can be requested. The general limitation period for claims of ten years is often used as a guide (Article 127 CO). On the other hand, there is a period of five years for claims by employees arising from employment relationships (Article 128, paragraph 3 CO).

In practice: In a judgement dated 28 December 2020, the Federal Supreme Court ruled that the ten-year period must be applied to employment references (judgement 4A_295/2020).

When must a requested employment reference be issued?

There is no legal basis that obliges the employer to issue a reference within a certain period of time. In general, you can assume that two weeks is sufficient time to write a reference. After this period, you can remind your line manager of the reference again. Always consider the individual circumstances. If the company is currently in peak season or the line manager goes on holiday two days after the application is submitted, you should probably allow a little more time. If in doubt, seek expert advice from a labour law solicitor so that you know exactly what your rights are and can assert them. If you would like to have your reference checked by a specialist centre, we recommend our partner arbeitszeugnishilfe.ch.