Term and Legal Significance of Assessment
The term assessment is a central term in German law and refers to the active process of evaluative judgment of a set of facts, an action, or conduct by an authorized person or body. In the legal context, the assessment regularly serves as the basis for decisions and legal consequences. It is applied in various ways in public law, especially in civil service and education law, as well as in private law. An assessment differs from a mere factual description by its evaluative character.
I. Legal Principles and Areas of Application
1. General Definition in Law
In the legal sense, an assessment is the determination and weighting of certain facts with regard to a legal norm or a specific purpose. This judgment is usually made in writing and often carries significant legal consequences.
2. Assessment in the Public Service
In civil service law, the assessment is an essential tool of personnel management. It serves to determine the suitability, capability, and professional performance of the civil servant. These assessments form the basis for promotions, transfers, and other personnel measures.
2.1. Legal Basis
Legal foundations for assessments in the civil servant relationship can be found in the Federal Civil Servants Act (BBG), the Civil Servant Status Act (BeamtStG), as well as supplementary state civil servant laws and administrative regulations.
2.2. Procedure and Requirements
Assessments are generally prepared by the immediate supervisor and must, according to legal requirements, be verifiable in substance and form and be comprehensible. Particularly relevant are the principles of objectivity, equal treatment, and transparency. Faulty assessments may render them unlawful and give rise to claims for correction by the affected persons.
2.3. Legal Remedies
Civil servants and other office holders have the option to challenge an assessment they consider incorrect or flawed, for example, by filing an objection or taking legal action before the administrative courts under §§ 68 et seq. VwGO (Administrative Court Code).
3. Assessment in Education and Higher Education Law
The term also carries great significance in the education sector. Here, the performance of students and university students is evaluated in the form of assessments (e.g., grades, reports, certificates), which, in turn, impact decisions concerning educational paths and degrees.
3.1. Legal Requirements
The preparation of school and university assessments is subject to the principle of equal opportunity (Art. 3 GG), the rule of law, and other statutory and sub-statutory regulations aimed at ensuring an objective and arbitrary-free evaluation.
3.2. Evaluation Criteria and Transparency
The prior stipulation of understandable and transparent evaluation criteria is decisive. Where there is a lack of comprehensibility or apparent evaluation errors, judicial review is possible.
II. Forms of Assessment in Law
1. Individual Assessment
An individual assessment is made for a single person or a specific individual case, such as in the context of service references, work references, or expert reports. In employment law, such assessments are particularly relevant for dismissals, promotions, or warnings.
2. General Assessment
This concerns entire groups, for instance, as part of collective legal measures, such as social selection in dismissal protection law or when evaluating pay groups.
3. Binding and Non-Binding Assessment
Assessments can be binding (such as in the form of an administrative act with regulatory effect) or non-binding (e.g., as an internal expert opinion). The legal effect of an assessment depends mainly on its classification in the individual case.
III. Legal Requirements for Assessments
1. Objectivity and Transparency
Assessments must comply with the principle of objectivity and must not be based on irrelevant considerations. Furthermore, transparency regarding the applied standards and evaluation criteria is required.
2. Obligation to State Reasons
Particularly in the public sector as well as in the context of references and expert opinions, there is an obligation to ensure the traceability of the assessment. The reasoning must be detailed enough so that the evaluated person can understand the main considerations and, if necessary, challenge them.
3. Legal Protection and Verifiability
Assessments are subject to judicial review. If an assessment error is established, correction, or if necessary, a reassessment by another body, is possible.
IV. Significance and Functions of Assessments
1. Basis for Decisions
Assessments often serve as a central basis for a wide range of actions, such as personnel selection and promotion decisions, disciplinary measures, award of qualifications, or permissions.
2. Management and Legitimization
They help to ensure the objective management of administrative actions and serve to legitimize decisions toward those affected and the public.
3. Control and Development
Assessments also enable quality assurance and control of standards, for instance, within the framework of personnel development or completion of training.
V. Distinction from Similar Terms
1. Difference from Evaluation
While an assessment provides a comprehensive, evaluative overview of performance, conduct, or suitability, an evaluation often involves a quantitative classification, for example by grades or scores.
2. Difference from Expert Appraisal
An expert opinion primarily aims at providing an expert description of facts. The assessment is broader since it can also contain a final (legal) evaluation and judgment.
VI. Case Law and Literature
Case law continuously further develops the requirements for assessments. Especially regarding transparency, reasoning, and judicial control, there are numerous landmark decisions. Relevant literature and commentaries provide information on the state of interpretation and developments.
VII. Summary
Die assessment is a central term in German law and is the essential foundation for many administrative decisions and legal consequences. It is subject to clear procedural requirements, must be carried out objectively, transparently, and verifiably, and can have significant influence on the rights and obligations of those affected. The continuous engagement with legal requirements ensures ongoing adaptation to societal and administrative developments.
Frequently Asked Questions
What legal requirements apply to the preparation of assessments in employment relationships?
Various legal requirements apply in Germany to the preparation of assessments in employment relationships. Particularly relevant are the General Equal Treatment Act (AGG), the Federal Data Protection Act (BDSG), as well as the employee’s right to privacy under Art. 2 para. 1 in conjunction with Art. 1 para. 1 Basic Law. An assessment must be objective, truthful, and comprehensible. Assessments based on prejudice, personal dislikes or discriminatory features such as gender, ethnic origin, religion, disability, age, or sexual identity are inadmissible. According to the BDSG, the processing of personal data in the context of assessments is only permitted insofar as it is necessary for the employment relationship. The affected employee has the right to access the assessment (§ 83 para. 1 Works Constitution Act) and, if applicable, to request the correction of incorrect information. Furthermore, an official or legal assessment must regularly comply with the principle of proportionality and must not include inadmissible value judgements or defamatory criticism.
Can employees take legal action against an incorrect or unjustified assessment?
Employees have the right to challenge an incorrect or unjustified assessment. Initially, they may request the correction, supplementation, or removal of the assessment from the employer. If the employer does not comply, the employee may take legal action, for example, by filing a lawsuit for removal of the assessment from the personnel file under § 1004 BGB analogously in conjunction with § 242 BGB. The prerequisite is that the assessment contains false statements of fact, violates the prohibition of arbitrariness or discrimination (e.g., AGG). Formal errors, such as violation of the right to be heard by employee representatives, may also justify legal challenge. In judicial review, a distinction is made between the so-called assessment discretion of the employer and the scope of judicial review: Statements of fact are fully reviewed, but the employer is entitled to certain discretion as regards evaluative judgments, which is only subject to limited review (for discretion errors, manifest arbitrariness, etc.).
What data protection requirements must be observed when preparing and storing assessments?
The assessment of employees constitutes the processing of personal data and is thus subject to data protection under the General Data Protection Regulation (GDPR) as well as the Federal Data Protection Act (BDSG). Employers must ensure that assessments are created and used only for specified, clear, and legitimate purposes (so-called purpose limitation). The storage, processing, and use of the data may only be carried out as long as required for the respective purpose. Additionally, the data must be protected against unauthorized access by appropriate technical and organizational measures. The employee has the right to information, correction, deletion, or restriction of processing of their assessment data. Access to the assessment by third parties is only permitted with the employee’s consent or on a legal basis. Upon termination of the employment relationship, the documents must, if necessary, be deleted or blocked unless legitimate retention periods exist.
To what extent must the works council be involved in the assessment of employees?
According to § 94 Works Constitution Act, the works council has a right of co-determination regarding the introduction and application of assessment principles by the employer. This means that assessment systems, for example, for personnel development or remuneration purposes, may only be introduced with the works council’s consent. The works council must also be involved in individual employee assessments if these serve as the basis for personnel measures (§ 99 Works Constitution Act), for instance, with transfers, dismissals, or promotions. The employee may also involve the works council with their own assessment and request support. The involvement of the works council serves to protect against arbitrary, irrelevant, or discriminatory evaluations and to ensure transparency of the assessment procedure.
What consequences can an unlawful assessment have for the employer?
An unlawful assessment can have various consequences for the employer. On the one hand, labor court proceedings may be initiated, for example for removal or correction of the assessment, which is associated with time and financial costs. If the court finds discrimination under the AGG, the employer may face claims for damages and compensation (§ 15 AGG). If the employee’s personality rights are violated – for example, through untrue, defamatory, or insulting statements – claims for injunction and compensation for pain and suffering can be triggered (§ 823 para. 1 BGB in conjunction with Art. 2 para. 1, Art. 1 para. 1 Basic Law). Violations of data protection obligations, such as the unauthorized disclosure of assessments, can result in severe fines under Art. 83 GDPR. Finally, faulty or unlawful assessments can negatively affect employer attractiveness and the working climate.
Are there any deadlines within which legal action against an assessment must be taken?
There are generally no strict statutory expiration periods for legal action against an unjustified assessment, as it is not an employee-initiated action for protection against dismissal. Nevertheless, prompt action is recommended to achieve correction and removal of the assessment from the personnel file, especially when the assessment forms the basis for personnel measures. Under the general principle of equal treatment or the AGG, however, it should be noted that claims under the AGG must generally be asserted within two months of becoming aware of the discrimination (§ 15 para. 4 AGG). For lawsuits seeking removal or correction, the general limitation periods (§ 195, § 199 BGB) apply, which are three years from knowledge of the cause of action. Nevertheless, asserting claims at a later date may be problematic in view of the practical impact of the assessment or evidence issues, so prompt action is advisable.
What requirements does case law place on the traceability and reasoning of assessments?
The courts require that assessments are comprehensible, objective, and based on a factual foundation. They must not consist of general, unsubstantiated value judgments. Rather, the relevant facts on which the assessment is based must be specifically named and – wherever possible – substantiated with examples. For instance, it is not sufficient to merely record general statements such as “performance deficits” or “lack of teamwork”; instead, it must be explained what these deficits specifically consisted of. Furthermore, the assessment must be consistent, comparable, and free of contradictions, and must not conflict with other personnel records or references. The employer’s discretion in assessments is expressly recognized by the courts; however, assessments are fully reviewed for factual accuracy and compliance with the outlined principles for reasoning and comprehensibility.
