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Update Employment Law April 2022

Who bears the burden of proof for receipt of an email?

LAG (State Labor Court) Cologne, February 11, 2022 - 4 Sa 315/21

Can the sender of an email rely on the email being received by the addressee quasi in real time as it has been sent? The State Labor Court Cologne has stated clearly that this is not the case. The sender bears the full burden of proof concerning receipt of the email by the addressee. Even if the sender does not receive notification of non-delivery there is no prima facie evidence that it has been received.


The plaintiff had trained as a pilot in the defendant's corporation. As per the training contract, he was required to contribute the amount of EUR 60,000.00 towards the cost of the training. Consequently, and in parallel to the training contract, a loan agreement for the amount of said contribution was concluded with another group company.The loan was paid out directly to the training company. 

With regard to repayment, it was agreed that if the plaintiff was not offered employment for operational reasons as a pilot within five years of completing the training, he would not be required to repay the loan.

The plaintiff completed his training on October 26, 2013. The deadline for an offer of employment therefore expired on October 26, 2018. On October 27, 2018, the plaintiff received a letter by post dated October 25, 2018. This letter contained an offer of employment from the defendant to the plaintiff. 

However, it remained a matter of dispute as to whether the plaintiff had already received an email from the defendant on October 25, 2018 containing an offer of employment. If he had not received an email before October 26, 2018, he would not be required to repay the loan.

No prima facie evidence upon receipt of an email 

In its judgment, the State Labor Court Cologne established that the plaintiff was not offered employment as a pilot within the period of five years. The letter, sent by post, was not received within the deadline. The defendant claimed that the same letter was sent to the plaintiff's email address on October 25, 2018 as an attachment to such email. However, the sending of an email does not constitute prima facie evidence of receipt of such email by the addressee. When an email is sent, the message is normally received on a server, but, this is not certain. Even with simple emails it is technically possible that the message does not arrive. As such, this risk cannot be shifted onto the addressee. After all, the sender chooses the form by which the declaration of intent is transmitted and therefore he should also bear the risk of the message not arriving. The State Labor Court Cologne also drew attention to the fact that the sender always has the option of requesting a confirmation of reading by the addressee, an option that was not exercised in the case at hand. 

As a result, the plaintiff was considered to not have been offered a position of employment within the five-year period. He was therefore not obliged to repay the loan. Therefore the advice of the State Labor Court should be followed in practice, i.e. always requesting a confirmation of reading if the time and receipt of the email are or could be of relevant importance.

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