Notice of the termination of the employment relationship does not take effect until its effective delivery to the employee.
For an employee to be deemed to have received notice it is sufficient that the notice of termination reaches the employee’s “sphere of influence” so that, “under normal circumstances considering the prevailing public view”, the employee can take note of its content. Whether or not notice of termination was received by the employee can be hard to prove, especially if the employee was not available to receive notice personally. If the employer is not able to prove the employee received the notice of termination, the employer has no other choice but to give notice of termination again.
Can the notice of termination be handed over to someone other than the employee?
If the notice of termination is handed over to the employee’s spouse, who is living with the employee, then the employee’s spouse is to be considered the “receiving agent” of the employee. However, the notice of termination is deemed to reach the employee only if the passing on of the notice of termination would be likely to occur under normal circumstances.
In a recent case, the employer had delivered the notice of termination to the husband of the employee outside their shared apartment by a messenger on the afternoon of 31st January, as the employee herself had left the workplace. However, the employee’s husband did not hand over the notice to his wife until the 2nd of February and therefore, according to the employee, the term of notice did not begin until a month later than would have been the case if the notice had been effectively received on 31st January.
However, the German Federal Labour Court decided on 9th June 2011 that the employee’s husband was the receiving agent on delivery of the notice of termination in the afternoon of 31st January 2008 and that, therefore, the notice of termination was received on 31st January. It was crucial that, under normal circumstances, the notice of termination could have been expected to be passed on to the employee on the same day it was received by the husband.
If possible, a notice of termination should always be handed over personally and its receipt should be confirmed by the employee. Only if this is not possible due to the absence of the employee should notice of termination be delivered by messenger to the employee, preferably by posting it into the mailbox of the employee’s home address very early in the morning to maximise the chance of it coming to the employee’s attention in normal circumstances. Generally, children are treated differently from spouses and are not suitable receiving agents. Receipt by registered post (or by registered letter with reply to show receipt) is not considered proof and delivery notice should not be relied on.
§§ 130 Abs. 1, 622 BGB
6 AZR 687/09
For further information or to discuss the issues raised, please contact Jutta Wittmann on +49 89 2422 300.