In its ruling 810 23 48 of November 15, 2023, the Cantonal Court of the Canton of Basel-Landschaft dealt with the question of whether a Employment reference Information on illness may contain. It summarizes the known principles, in particular in connection with the question of when a (more negative) final reference may deviate significantly from a (much more positive) interim reference.
In particular, the question of when a certificate may comment on illness was also disputed:
10.2.1 The issuance of an employment reference requires that the employer is permitted to process the employee’s data required for this purpose. The legal basis can be found in Art. 328b CO on the one hand and in the Federal Act on Data Protection (FADP) of September 25, 2020 on the other, which is declared applicable in Art. 328b sentence 2 CO. Art. 328b CO sets limits to the principle of completeness insofar as only data relating to the employee’s suitability for the employment relationship may be processed in the employment reference. Due to the declaration of applicability of the DPA, its principles must also be observed. For example, the principle of proportionality means that incidents that are not representative of the overall picture of the employee should not be processed or included in the reference […].
10.2.2 The admissibility of mentioning illness in the reference is affirmed by the Federal Supreme Court in two groups of cases. Firstly, a mention is required if the illness has a considerable influence on the employee’s performance, conduct and suitability to carry out their duties and it constituted an objective reason for termination. Secondly, longer absences due to illness must be mentioned if they constitute a significant share of the total contract term regardless of whether the illness was related to the workplace. The reason for this is that otherwise the reference would not provide correct information about the work experience gained. Ultimately, the circumstances of the individual case are decisive in these case groups […]. If the requirements are met, care should be taken to keep the wording as concise as possible. In particular, a detailed description of medical details (symptoms, diagnosis) should be avoided […].
In this case, it was undisputed that illness could be cited as a reason for termination. However, the more precise Indication of sick leave:
10.3.2 […] The individual mentions of the respective dates of the absences overemphasize the absence from work due to illness, particularly in view of the brevity of the reference. The listing of the exact absences is also not necessary to assess the overall picture of the complainant. Nor does the omission of the exact list mean that the reference is untrue or incomplete or does not provide correct information about the professional experience gained. […] It follows from this that the reference should certainly state that the employment relationship […] was terminated as a result of a long absence due to illness and an unforeseeable recovery. However, the exact list of absences due to illness must be omitted.
Also inadmissible was the Indication of continued payment of wages:
10.4.3 The statement in the reference that the complainant subsequently continued to receive salary payments until […] is not part of the minimum content of an employment reference and serves neither her professional advancement nor a future employer to obtain a true reflection of the complainant’s work, performance and conduct. The continued payment of wages must therefore not be mentioned in the reference.