Regional Labour Court in Cologne: Burden of proof for access to an email

The sender of an email has the burden of proof and must produce evidence to show that an email was received by the recipient (in accordance with § 130 of the German Civil Code, Bürgerliches Gesetzbuch, BGB). The sender will not benefit from an easing of the burden of proof if they do not receive notification upon sending that the email is undeliverable. This was the decision of the Regional Labour Court in Cologne (Landesarbeitsgericht, LAG) on 11 January 2022 (Case No. 4 Sa 315/21), as the press release of the Court of 21 February 2022 shows.

Facts of the case

The dispute involved the claimant’s obligation to repay a loan he received from the defendant to finance training. The loan agreement provided that the defendant would waive the repayment requirement if, for operational reasons, the defendant did not offer the claimant a position of employment within five years of the end of the training. Whether the claimant received an email with a contract for employment as an annex on the last day of the deadline was in dispute. The defendant produced evidence from its inbox and outbox which showed that the email was sent and that it did not receive any notification that the email was undeliverable. According to the claimant, he only received said email three days later. According to the attached employment agreement, the defendant would start withholding EUR 500 per month from the claimant’s salary as a repayment for the loan. The defendant was of the view that it had made the claimant an offer of employment in time through the email. The condition precedent for the waiver of repayment of the loan had therefore not occurred. The defendant sought to rely on the prima facie evidence with respect to the timely delivery of the email.

The judgment

The Labour Court held in favour of the claimant. The Regional Labour Court dismissed the defendant’s appeal. The Court held that it is for the sender to prove and provide evidence that an email was received. Sending the email does not establish prima facie evidence of the receipt by the recipient. Whether the message was received on the recipient’s server is not known. As with regular mail, it is technically possible that the message will not be delivered. The risk of this happening cannot be imposed on the recipient. The sender chooses how they will communicate their declaration of intent and thus bears the risk that the message will not arrive. To ensure that an email reaches its intended recipient, the sender can request a read receipt through the options on its email software.

Consequences for practice

The judgment applies not just to labour law but to all civil law cases except where specific statutory provisions apply. When sending an important email, you should therefore generally ask for confirmation of receipt of the email from the recipient or set up an automatic read receipt. If the sender does not do so and has no evidence of receipt, the burden of proof could be their downfall before court.

(Source: Press release of the Regional Labour Court in Cologne)