When a “positive” employment reference becomes more than a formality

At the end of an employment relationship, issuing a reference letter is often treated as a mere formality. However, under Dutch law (Article 7:656 of the Dutch Civil Code), an employer is legally required to issue such a certificate upon the employee’s request. While the law outlines basic content requirements—such as job title, duration of employment, and hours worked—it does not require the employer to provide a positive assessment.

Nevertheless, in practice, employers often agree to issue a “positive reference letter,” especially when negotiating a settlement. But what exactly qualifies as “positive”? Can such a commitment be enforced? And what are the legal risks for employers?

Legal duty ≠ positive tone

Dutch law mandates the issuance of a reference letter at the end of employment but does not impose a requirement that the content be favourable. The law merely obliges the employer to mention objective facts.

Any positive wording—such as the quality of the employee’s performance or a statement of gratitude—goes beyond this duty and is only binding if contractually agreed.

Once agreed, it’s enforceable

If the parties have formally agreed to a “positive” reference—whether in a termination agreement or in a court-recorded settlement—this becomes a legally enforceable obligation.

In a recent ruling, the District Court of Oost-Brabant (ECLI:NL:RBOBR:2024:5658) found that a neutral letter merely listing tasks and dates did not fulfil the employer’s obligation to issue a “positive” reference, as previously agreed.

Brief background of the case: During an earlier legal procedure, the employee and employer agreed to terminate the employment contract, with the understanding that the employee would receive a “positively worded” reference letter. This agreement was even recorded in an official court report. When the employee later received only a neutral reference at the end of the employment, they returned to court. The municipality (employer) was then ordered to issue a revised, positive statement under the threat of a €1,000 daily penalty.

What qualifies as positive?

• Neutral ≠ positive: A mere list of duties and dates won’t meet the bar if a positive reference was agreed.
• Explicit praise required: For instance, noting that an employee “successfully guided students to exam completion” may qualify as positive.
• Honesty remains key: Employers must avoid exaggerations or misleading claims, even if they contractually promised a positive tone.

Under Article 7:656(5) of the Dutch Civil Code, employers may be liable for damages if the letter includes false or misleading information—or omits critical context in a way that misleads third parties.

Practical guidance

Who decides what’s “positive”?

While employers have discretion in phrasing a performance review, courts may intervene where a positive reference was promised but not delivered.

Importantly:

• Neutrality does not satisfy a positive-letter agreement.
• Employers remain accountable for content—even when employees propose the draft.

Conclusion

A positive reference letter may seem like a small favour, but the legal implications can be significant. Where an agreement includes such a provision, employers should tread carefully.

To minimize risk:

1. Agree in writing on what will be included in a positive reference letter.
2. Phrase it objectively and truthfully.
3. Deliver the letter on company letterhead and with an authorized signature.
4. Seek legal advice when in doubt—especially in sensitive dismissals.

Do you have questions about reference letters, termination agreements, or employer liability?
Our employment law team is here to assist.