When is a termination under labor law deemed to have been received?

A recent ruling by the Federal Labor Court (BAG) clarifies one of the most common issues in labor law: How can proof of delivery of the termination be provided? This question is particularly relevant because receipt is not only crucial for compliance with notice periods and the start of the period for bringing legal action, but also for determining whether the termination is effective at all.

This decision is also extremely relevant for employers who are not based in Germany but employ workers in Germany.

Facts of the case: The dispute over receipt of the termination

In the underlying case, an employer had terminated an employee’s employment. However, the question arose as to whether the employee had actually received the termination.

Because one thing is certain: if the employee to be terminated does not receive the termination, then it is not effective and the employment relationship is therefore not terminated.

The employer claimed that two employees had put the letter of termination in an envelope together. Then one of them had taken the envelope to the post office. There, she is said to have arranged for it to be sent as registered mail.

The decision of the Federal Labor Court

The Federal Labor Court (judgment of January 30, 2025, 2 AZR 68/24) clarifies that a written termination is deemed to have been received at the moment it enters the sphere of control of the recipient and, under normal circumstances, can be expected to have been noticed.

However, the employer bears the burden of proof for the receipt of a letter of termination. This means that the employer must provide concrete evidence that the termination was actually placed in the employee’s mailbox. Or, even better, that the termination was handed over in person.

Registered mail is not proof

Sending the termination by registered mail is not sufficient to provide this proof.

A printout of the shipment tracking did not help the employer either, because essential information was missing.

The ruling states:

“The printout of the shipment status, which shows the same shipment number as on the proof of posting and the delivery date, also does not provide sufficient guarantee of receipt.

In this case, it is not possible to determine who delivered the shipment, nor is there sufficient evidence that the procedure described by the Federal Court of Justice or the currently valid procedure of Deutsche Post AG for the delivery of mailed items was actually followed.

The shipment status is not a substitute for the delivery receipt.

It does not indicate whether the delivery person actually paid special attention to the specific delivery, which would justify the conclusion that the delivered item was placed in the recipient’s mailbox.”

Furthermore, the shipment status did not indicate to whom the letter was actually delivered. To the recipient personally, to another person living in the household, or simply by being placed in the mailbox? Not even the delivery address was noted. The time of the alleged delivery was also missing. In addition, the shipment status did not contain any information about the person who delivered the letter.

No proof – no termination

Since the employer could not prove that the termination had been delivered, the termination was deemed invalid.

Practical implications for companies

The ruling has far-reaching consequences for employers.

Employers who wish to terminate an employee’s contract must ensure that the termination is delivered within the notice period.

Registered mail is not suitable for this purpose.

Practical tip: Avoid mistakes when delivering termination notices

To ensure that a termination notice is delivered in a legally compliant manner, employers should note the following points:

• Proof of delivery: Ideally, delivery should be documented by witnesses or a courier.
• No electronic means: Termination by email or fax is not sufficient under labor law, as it does not meet the legal requirement for written form. Even “advance transmission” of the termination by email does not help, as this also does not constitute proof that the termination was delivered correctly.
• Time of delivery: Ideally, the letter should be posted in the mailbox in the morning to ensure that the recipient can take note of it on the same day. If the termination is not posted until 11 p.m., it can generally no longer be assumed that it will be received on the same day. This can have consequences for the notice period.

Conclusion

The delivery of a termination notice should ideally be carried out by courier. They collect the letter from the employer and also take note of it before putting it in the envelope. Then they go to the delivery address and document the correct delivery of the item. They then send this documentation to the employer.

This not only provides the employer with sufficient documentation. It also allows them to name the courier as a witness for the delivery in court.

We are happy to answer any questions you may have about termination and unfair dismissal claims.