Employment Reference Letter

The Employment Reference Letter in Switzerland: A Complete Guide for Employers and Employees

In Switzerland, the employment reference letter is a fundamental document in the relationship between employer and employee. Governed by article 330a of the Code of Obligations, this official document traces the professional career of an employee within a company. Its delivery is not a mere administrative formality but a legal obligation imposed on every Swiss employer. The reference letter must accurately and favourably reflect the employee's performance and conduct. Its drafting requires precision and neutrality, as its implications can be considerable for the employee's future career. Our law firm assists employers and employees daily in drafting, analysing and contesting these documents whose legal scope often exceeds a simple attestation of employment.

Legal Framework and Fundamental Principles

The right to an employment reference letter is formally enshrined in the Swiss Code of Obligations. Article 330a CO stipulates that "the employee may at any time request from the employer a reference letter relating to the nature and duration of the employment relationship, as well as the quality of their work and conduct". This provision constitutes the legal foundation on which the entire Swiss employment reference letter system rests.

The employment reference letter is governed by several cardinal principles that determine its validity:

• The principle of truthfulness requires that the content of the reference letter correspond to the reality of the professional career
• The principle of goodwill requires that the wording not unduly harm the employee's professional prospects
• The principle of completeness requires that all significant activities be mentioned
• The principle of clarity requires comprehensible drafting, without codes or ambiguous formulations

The Federal Supreme Court's case law has progressively clarified these principles. In ATF 136 III 510, the high court recalled that "the reference letter must be drafted with goodwill, but must not give an inaccurate picture of reality". This difficult balance between goodwill and truthfulness often lies at the heart of employment reference letter disputes.

Types of Employment Reference Letters

Swiss law primarily distinguishes two types of reference letters:

• The interim reference letter (or employment attestation), issued during the employment
• The final reference letter, given at the end of the employment relationship

The interim reference letter may be requested at any time, without the employee having to justify their request. It is useful when looking for a job while still employed or to document a specific part of a professional career. The final reference letter, more comprehensive, constitutes an overall assessment of the collaboration. Its legal scope is more significant, hence the particular attention our law firm recommends paying to it.

Content and Wording of the Employment Reference Letter

An employment reference letter that complies with Swiss legal requirements must contain several constituent elements. Its structure generally follows a logic established by practice and case law. Courts have progressively defined the contours of a complete and valid reference letter.

Mandatory Elements

Any employment reference letter must imperatively contain:

• The full identity of the employer and employee
• The precise duration of the employment relationship (start and end dates)
• A detailed description of the functions performed
• A qualitative assessment of performance
• An assessment of the employee's conduct
• The reasons for ending the employment relationship (with nuance)
• The date of issue and signature of an authorised officer

The description of functions must faithfully reflect the responsibilities actually exercised by the employee. An overly brief or imprecise list may constitute a legitimate ground for contestation. Case law requires that this description be sufficiently detailed to allow a future employer to form an accurate idea of the employee's scope of action.

The Coded Language of Reference Letters

A Swiss peculiarity lies in the existence of a "coded language" in employment reference letters. Certain formulations, apparently innocuous, may conceal negative assessments. For example, the mention that the employee "carried out the tasks assigned to them" generally suggests minimal performance without initiative. Our experience shows that these codes, although criticised and theoretically prohibited by recent case law, persist in practice.

The standard evaluation scale generally comprises four to six levels, ranging from "very good" to "unsatisfactory". The formulation "gave full satisfaction" generally corresponds to a good evaluation, while "gave satisfaction" reflects average performance. These linguistic nuances, sometimes subtle, can have significant consequences for how a future employer interprets the reference letter.

Application Procedure and Deadlines

The procedure for requesting an employment reference letter follows a precise framework, although the law does not impose any particular formalism. Knowledge of the steps and deadlines is a major asset in asserting one's rights effectively.

Initiating the Request

The employee may submit their request for a reference letter:

• By postal letter (ideally registered to retain proof)
• By email (with acknowledgement of receipt if possible)
• By verbal request (to be avoided due to the absence of a paper trail)

The request does not need to be motivated or follow any particular format. Nevertheless, our practice leads us to recommend a written request specifying the type of reference letter desired (interim or final) and courteously recalling the employer's legal obligation.

While the initiative for the request lies with the employee, the employer must spontaneously issue a final reference letter upon the cessation of the employment relationship. This obligation derives directly from their duty of care towards the employee.

Legal Deadlines and Prescription

Although the Code of Obligations does not set a specific deadline for issuing the reference letter, case law considers that a reference letter must be delivered within a reasonable timeframe. In practice, this deadline is generally a few weeks. Excessive delay may justify a formal notice to perform.

The right to request an employment reference letter is subject to the general prescription period of 10 years (article 127 CO). This period runs from the end of the employment relationship for a final reference letter. An employer cannot therefore legitimately refuse to issue a reference letter on the grounds that the request is late, if it is made within this ten-year period.

In the event of persistent refusal by the employer, the employee has several avenues of recourse, including referral to the labour tribunal. Our law firm observes that the mere mention of legal proceedings is often sufficient to unblock the situation, given that the legal obligation is clearly established.

Contesting and Rectifying the Employment Reference Letter

Contesting an employment reference letter is a frequent process in Swiss employment law. An employee who considers that their reference letter contains inaccuracies, omissions or prejudicial formulations has specific means of action available to obtain its modification.

Legitimate Grounds for Contestation

An employment reference letter may be contested for various reasons:

• Factual inaccuracy concerning dates, functions or responsibilities
• Unjustified assessment of performance or conduct
• Omission of significant elements of the professional career
• Ambiguous or coded formulations with negative connotations
• Mention of facts unrelated to professional activity

Case law has established that the employee must be able to demonstrate how the reference letter fails to comply with the principles of truthfulness, goodwill or completeness. The burden of proof generally lies with the employee when contesting the accuracy of facts mentioned, but it is for the employer to justify a negative assessment of performance or conduct.

Rectification Procedure

The contestation process generally follows several phases:

1. An amicable request for modification addressed to the employer
2. A formal notice to perform in the absence of a response
3. A conciliation procedure before the competent authority
4. A judicial action before the labour tribunal

Our experience shows that many disputes are resolved at the first stages. The initial request benefits from being precise and documented, clearly indicating the contested passages and the desired modifications. A constructive approach, avoiding any aggressiveness, generally favours a rapid resolution.

The court may order rectification of the reference letter if it finds the contestation well-founded. In some cases, it may even draft the terms of the corrected reference letter itself. Judicial decisions in this matter are generally enforceable notwithstanding appeal, allowing the employee to quickly obtain a compliant document.

The Coded Language of Swiss Employment Reference Letters: Practical Examples

In Switzerland, a coded language persists in the drafting of reference letters, despite criticism from case law. Here are the most common formulations and their real meaning:

Employee Rights Regarding the Employment Reference Letter

• Absolute right to a reference letter: the employee may request a reference letter at any time, even years after the end of the contract (prescription 10 years, art. 127 CO)
• Right to a goodwill and truthful reference letter: the wording must not cause harm without objective justification
• Right to rectification: via amicable request, formal notice, then judicial action
• Right to an interim reference letter: without having to justify the request, at any time during employment
• Delivery deadline: a few weeks (reasonable deadline according to case law)
• Form: written document, signed by an authorised officer, on company letterhead

Frequently Asked Questions About Employment Reference Letters