Certificate grade 3 remains the average. BAG 18.11.2014 - 9 AZR 584/13

Although a large number of employment references are issued with a good or even very good rating, in the opinion of the Federal Labor Court, the grade 3 remains an average rating.

The plaintiff was employed in a dental practice and was involved in tasks relating to practice organization and practice quality management. After termination, the plaintiff received a certificate stating that the plaintiff's performance had been assessed as "fully satisfactory", i.e. a grade of 3. The plaintiff claimed the grade 2 and the wording "always to the full satisfaction".

The lower instance of the Berlin-Brandenburg Regional Labor Court (21.03.2013 - 18 Sa 2133/12) was of the opinion that a "satisfactory" assessment is no longer an average assessment according to today's understanding. It based this opinion on a study according to which 87.3% of the references evaluated in 2011 contained good performance evaluations. This means that an employee with a merely "satisfactory" reference runs the risk of being rejected in the application process. certificate runs the risk of having poorer chances in the application process. A .good. performance evaluation can no longer be regarded as above average against this background, so that the employer must demonstrate in the process that only a .satisfactory. assessment was justified.

The Federal Labor Court does not share this view. According to the Federal Labor Court, no studies can be used to assess the burden of presentation and proof. The most frequently awarded grades are not relevant for the burden of proof in the trial. The grade "satisfactory" remains the standard. If the employee requests a better grade, it is incumbent on him to present the facts that his performance was .good. or .very good. If the employer wishes to give a rating worse than .satisfactory. If the employer wishes to give a rating lower than "satisfactory", he must prove the facts from which a poorer performance results.

Despite the noticeable "grade inflation" in performance evaluations in job references in recent years, the Federal Labor Court has not reacted accordingly.

Date: 18. Nov 2014