Legal situation for employment references in Switzerland

Art. 330a Code of Obligations

Art. 330a CO stipulates that the employee can 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 conduct (para. 1). If specifically requested by the employee, the reference must be limited to information on the nature and duration of the employment relationship (para. 2).

Contents

Pursuant to Art. 330a para. 1 CO, a (qualified) reference must address the nature and duration of the employment relationship as well as the employee's performance and conduct. It must contain all essential facts and assessments that are important for an overall description of the employment relationship and for an overall assessment of the employee.

The actual information in the reference must therefore be complete (requirement for completeness), clear (requirement for clarity) and also objectively correct (requirement for truthfulness) and discretion must be exercised, whereby the employer has a certain amount of leeway. A discretionary error only exists if a value judgment is based on objectively incorrect facts or if standards other than those customary in the market are used.

Benevolence and truthfulness

The employer's duty of care and the function of the reference to facilitate the employee's economic advancement mean that the reference must be formulated in a benevolent (gentle) manner.

However, goodwill is limited by the obligation to be truthful. The employee is entitled to an objectively true reference, not a good one; the principle of truth takes precedence over the principle of goodwill.

Benevolence is therefore the maxim of discretionary action, but does not mean that facts and assessments that are unfavorable to the employee may not be mentioned in the reference. However, the prerequisite is that the negative aspects are significant for the overall assessment of the employee, i.e. they are not completely isolated incidents or minor details. Furthermore, the reference must be formulated clearly and comprehensibly. However, the wording is at the discretion of the employer. In principle, the employee has no right to demand that the employer chooses certain wording.

Coding

In terms of employment law, coding represents linguistic formulations "whose hidden meaning is only known to a certain group of employers and which give the reference a content that the uninitiated reader does not recognize".

Such secret language violates the principle of clarity and is therefore inadmissible, especially as the deceptive effect of a coded reference also violates the principle of good faith.

This does not change even if the facts and assessments are correct, because by choosing codes, the employer has resorted to a method of transmission that is deceptive in itself.

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