Who is responsible for proving that an e-mail has been received?

Published 03 March 2022

E-mail communication has permanently changed day-to-day professional life. Every day, countless legally significant declarations are made via e-mail. But there are still numerous aspects of (labour) law that have only been clarified in isolated cases. Who owns a company e-mail box? Does an e-mail fulfil the legal requirement for the written form? Is email communication a permissible form of communication under (data protection) law? 

In the employment relationship, communication by e-mail has become indispensable. In day-to-day situations, numerous declarations are made by e-mail that may be legally significant. Communication – including legally significant declarations – with employees who are off duty, or on sick leave for a long period of time is often conducted using their private e-mail address. Requesting a read receipt does not (always) guarantee that the recipient will actually receive it.   

The Cologne Higher Labour Court (21.2.2022, 4 Sa 315/21) recently ruled that the sender of an email bears the burden of producing evidence and proof that the email was actually received by the recipient. If the sender does not receive a notice of undeliverability, this does not ease the burden of proof. The sending of an e-mail and the corresponding transmission protocol do not establish prima facie evidence of receipt (OGH 2 Ob 108/07g) either. The receipt of an e-mail is (technically) uncertain. The sender bears the risk, not the recipient. This risk affects both sides, employees and employers. For example, an applicant who asserted claims on the grounds of alleged discrimination in the application process failed simply because he could not prove that his application sent via e-mail had actually reached the employer who had advertised (LAG Berlin-Brandenburg 27.11.2012, 15 Ta 2066/12). 

In Austria, currently the same rules apply as to letters. Even if it is proved that a (non-registered) letter was sent by post, there is no legal principle that means the addressee is assumed to have received (OGH RS0014065). Therefore, it has to be proven that an e-mail has been received. For receipt, the possibility of the recipient to take note of the message „under normal circumstances" is sufficient. This is to be assessed on a case-by-case basis (recently OGH 8 ObA 5/20y, also on the question of whether the receipt of a termination was prevented in bad faith). Legal questions can also arise here, e.g. in connection with spam folders (OGH 3 Ob 224/18i).

In summary, the general principles for the receipt of declarations apply to e-mails. It is advisable to pay attention to this in day-to-day working life, and if necessary to distinguish between important and less important messages. Both employers and employees should carefully consider how they communicate and bear in mind that e-mail is not always the most suitable form of communication.