Investigations and Their Mention in Employment References: Between Duty of Care and Personality Rights
The labor law classification of suspicions, especially criminal investigations, regularly lies in the tension between protecting the affected employees and the legitimate informational interests of the employer as well as potential future employers. The Labor Court of Siegburg (Judgment of 21.08.2024 – 5 Ca 1465/24) was required to decide on the scope of such information exemplarily in the case of a social worker, against whom an investigation for possession of child pornographic images was conducted and whose mention in the employment reference was disputed.
The Balance Between Personality Rights and Legitimate Interests of the Employer
Basic Equipment and Limits of the Employment Reference
The employment reference holds a prominent position in German labor law. It should not unnecessarily hinder the employee’s further professional career (a “benevolent reference”), but must not contain false or flattering statements. Instead, the reference should provide a truthful picture that properly informs future employers about essential matters. The mention of criminal offenses, allegations, or ongoing investigations is only permissible if the informational interest outweighs the personality rights of the affected individual, considering the employee’s role and the severity of the incident.
Specificity of Social Work: Special Trust and Need for Protection
In the present case, the plaintiff was entrusted with social work involving juvenile wards. Working with a particularly vulnerable group justifies increased trust in the integrity and reliability of the staff. Especially with regard to this position of trust, information about investigations that relate directly to the specific activity – particularly in sensitive areas such as financial crimes related to client funds or sexualized violence or depictions involving children in work with minors – may have special relevance for subsequent employers.
The Labor Court Proceedings: Scope of the Obligation to Issue References in Ongoing Investigations
Facts and Legal Classification
A social worker was accused of possessing child pornographic material. Although an investigation was ongoing at the time the reference was issued, no criminal conviction existed. The employer included a statement in the reference indicating that an investigation regarding this suspicion existed. The employee objected, arguing that this constituted an impermissible stigma and that the presumption of innocence applied.
Balancing Interests and Judicial Assessment
The Labor Court of Siegburg differentiated: as a rule, there is an obligation to mention only proven facts. An exception may be justified if the suspicion is supported by concrete circumstances and the interests of others – such as future employers and third parties, especially those in need of protection – carry significant weight. In the field of educating, caring for, or nursing minors, the protection of this group must be given special importance. At the same time, the reference must not amount to a pre-conviction: the wording may only reflect, formally, the status of an ongoing investigation, with explicit regard for the presumption of innocence.
The mention that an investigation regarding the employee’s possession of child pornographic images was ongoing was deemed permissible after weighing the affected interests. However, any further or evaluative statement, especially explicit suspicion or even pre-judgment, would be inadmissible.
Legal Limits of Reporting Suspicions in Employment References
Importance of the Presumption of Innocence and Formulation Options
The presumption of innocence is a central principle of the rule of law and prohibits portraying an employee as already guilty through formulations in the reference. The mention of the purely objective fact of an ongoing investigation – without evaluation, without suggesting personal guilt or moral condemnation – can, in exceptional cases, at least in activities with a special trust and protection relevance, be permissible. What remains decisive is the strict balancing of interests in each individual case.
Impact on the Practice of Issuing References
The judgment clarifies that employers, in particularly sensitive cases, are not only obligated to care for the departing employee but also must take into account the protection interests of the public and subsequent employers. For employment relationships involving special protection interests, mentioning the progress of an investigation can be justified, provided that the wording is chosen solely in an objective, balanced manner while strictly preserving the presumption of innocence.
Conclusion
The judgment of the Siegburg Labor Court highlights the particularities in handling sensitive suspicion cases in the context of certificate issuance law. While the principle of benevolent and truthful reference issuance remains valid, in activities involving especially protected interests, the right to information under strict conditions may justify mentioning an ongoing investigation – but not every evaluative statement.
Clients with further questions regarding the topic of employment references and suspicion reporting, especially in sensitive suspicion cases within employment relationships, can find comprehensive information and offers for individual legal advice in labor law under Legal Advice in Labor Law by MTR Legal Attorneys.
Source: Siegburg Labor Court, judgment dated 21.08.2024 (Ref. 5 Ca 1465/24), available at https://urteile.news/ArbG-Siegburg_5-Ca-146524_Ermittlungsverfahren-wegen-des-Besitzes-kinderpornographischer-Bilder-darf-bei-einem-Sozialarbeiter-im-Arbeitszeugnis-erwaehnt-werden~N35458. Note: This is a first-instance judgment. The presumption of innocence applies until a legally binding conviction.
