The real-life case – invitation to a BEM meeting and dismissal on grounds of illness
The dispute concerned a dismissal on grounds of illness. The employer had invited an employee, who had frequently been unfit for work for short periods, to a BEM meeting. When the employee did not respond, the employer issued a dismissal on grounds of illness.
In the subsequent unfair dismissal proceedings, the employee denied ever having received the invitation to the BEM meeting. The employer relied on an invitation letter sent by recorded delivery by insertion into the letterbox and produced the posting receipt and the delivery record. The postal worker was also heard as a witness, but could not remember the specific delivery.
The Hamburg Higher Labour Court had to decide whether the form of digital proof now commonly used for recorded delivery by insertion into the letterbox gives rise to prima facie evidence that the item was received. Under the digital procedure, the postal worker scans the barcode, signs on the display of the scanner and the delivery date is generated automatically before the letter is inserted into the letterbox. However, the digital documentation contains neither a specific delivery address nor a time of delivery.
The Hamburg Higher Labour Court held that the posting receipt, together with the digital delivery documentation, does not establish prima facie evidence of actual receipt. In particular, the recipient’s address and the time of delivery were not documented. The delivery process was not so standardised that individual irregularities could be disregarded. The court therefore found that the employer could not prove receipt of the BEM invitation. An essential requirement for the dismissal on grounds of illness had not been satisfied, with the result that the employee’s unfair dismissal claim succeeded.
The Federal Labour Court has now dismissed the employer’s appeal on points of law and upheld the decision of the Higher Labour Court. The written reasons for the judgment are not yet available.
Recorded delivery by insertion into the letterbox and proof of receipt – what is the position now?
The digital documentation of recorded delivery by insertion into the letterbox is limited to the scanned barcode, an electronic signature and the automatically generated delivery date. It does not state the specific delivery address or the time of delivery. The Hamburg Higher Labour Court – and now also the Federal Labour Court – do not regard this as a sufficiently standardised course of events capable of giving rise to prima facie evidence of receipt. If the digital delivery record were treated as sufficient, the recipient would in practice have no real means of rebutting that presumption or adducing evidence to the contrary.
The consequence is clear: according to this case law, the digital documentation of recorded delivery by insertion into the letterbox does not constitute proof that a document was received. Employers who rely solely on such a delivery record in litigation bear the risk of being unable to prove receipt, for example of a BEM invitation or a notice of dismissal.
Significance of the decision for employers
The decision did not come as a surprise. Various lower courts, as well as the Federal Labour Court, had previously expressed doubts as to whether the digital documentation of the delivery process for recorded delivery by insertion into the letterbox satisfies the strict requirements for proving receipt.
For employers, this means:
- The digital documentation of recorded delivery by insertion into the letterbox does not provide proof of receipt in court proceedings.
- This is particularly critical where legal consequences depend on receipt. Where receipt of a declaration is a requirement for its effectiveness – for example in the case of warnings, notices of dismissal, offers to conclude a termination agreement or BEM invitations in the context of dismissals on grounds of illness – there is a considerable litigation risk if the employer has relied solely on recorded delivery by insertion into the letterbox.
- The burden of proof lies with the employer. In unfair dismissal proceedings, it is for the employer to prove receipt of the notice of dismissal and, in the case of a dismissal on grounds of illness, usually also receipt of the BEM invitation. If that proof cannot be provided, the dismissal is invalid for that reason alone.
Practical recommendations – how to prove receipt in a manner that will withstand scrutiny in court
The current case law has clear practical consequences for the delivery of notices of dismissal and BEM invitations:
- Do not use recorded delivery by insertion into the letterbox as the sole method of delivery.
- Use delivery by messenger, courier or a comparable delivery service.
The safest alternative remains delivery by a messenger or courier service who:
- reads the original letter and places it in the envelope,
- inserts the original letter into the recipient’s domestic letterbox,
- records the date, time and exact delivery address on a receipt,
- signs the delivery confirmation or delivery record, and
- photographically documents both the letter and its insertion into the letterbox.
Your lawyers at SPIEKER & JAEGER will be pleased to provide expert assistance. Please do not hesitate to contact us.