In its judgement of 7 May 2026 (2 AZR 184/25), the Federal Labour Court (Bundesarbeitsgericht – BAG) has upheld the decision of the Hamburg Regional Labour Court (Landesarbeitsgericht – LAG) regarding the lack of prima facie evidence in the case of digitized registered mail: As the delivery agent’s digital signature is applied before the letter is actually delivered into the recipients mailbox, there is no typical sequence of events to suggest that delivery has taken place. Consequently, there is no prima facie evidence of receipt by the addressee. Deutsche Post had already responded prior to the BAG’s judgement by further amending its procedure for registered mail delivered via mailbox.
The receipt of declarations of intent is of crucial importance for legal transactions even outside the field of employment law and has implications both for their validity and for the determination of time limits. Proving effective receipt has therefore always been of great significance in practice. For this reason, the BAG’s ruling could present a new challenge for all parties involved in legal transactions.
We had already reported on the ruling of the Hamburg Regional Labour Court (LAG) of 14 July 2025 (4 SLa 26/24) in our newsletter article of 25 March 2026. As far as can be seen, the LAG ruled here for the first time on Deutsche Post’s digitized registered mail procedure and rejected the existence of prima facie evidence of receipt by the addressee.
I. Proceedings before the Hamburg Regional Labour Court
The facts underlying the proceedings concerned the dismissal on grounds of ill health of an employee who had reported himself unfit for work on a total of 152 working days in the three years prior to the notice of dismissal being served. The employer had invited the employee on a total of seven occasions to take part in a workplace integration management program (betriebliches Eingliederungsmanagement – bEM).
Before giving notice of dismissal on grounds of ill health based on a negative prognosis regarding recurring future absences, the employer must, as a less onerous alternative, enable the employee to participate in such a bEM program. The employer sent the final invitation by registered mail with proof of delivery (Einwurfeinschreiben), whereby Deutsche Post uses a relatively new digitalized procedure for delivery: the item is scanned with a handheld scanner before being placed in the letterbox, and the postman confirms the process with a digital signature.
The employee denied having received this letter. Both the Hamburg Labour Court (Arbeitsgericht – ArbG) and the LAG upheld the action for protection against unfair dismissal and deemed the dismissal disproportionate, as the employer was unable to prove that the bEM invitation had been received and, consequently, that the milder measure had been chosen prior to the dismissal. The employer was unable to rely on what is known as ‘prima facie evidence’, according to which the existence of a proof of delivery gives rise to a presumption that delivery actually took place.
In its reasoning, the court stated that it was unclear what specific sequence of events the digitally generated proof of delivery was intended to document, as the Deutsche Post system does not allow postal customers to view either the time of delivery or the recipient’s address affixed to the item. Furthermore, under the digitized procedure, the postman merely has to scan a barcode on the item, which means that immediately before delivery into the mailbox, he could be holding several items at once, thereby increasing the likelihood of an incorrect delivery.
II. Appeal before the Federal Labour Court
The BAG dismissed the employer’s appeal and declared the employee’s dismissal to be socially unjustified within the meaning of Section 1 para (2), first sentence, of the German Employment Protection Act (Kündigungsschutzgesetz – KSchG). In doing so, it first confirmed established case law according to which an employer who has failed to carry out a mandatory bEM bears the burden of proof that even if a bEM had been carried out, it would not have led to a positive prognosis regarding future absences. The employer can provide this proof, in particular, by demonstrating that the employee received a letter inviting them to attend a bEM.
The BAG further states that the digitally accessible delivery receipt, which the postal customer can retrieve and print as part of the digitized registered mail procedure, is not suitable, based on general life experience, for assuming that the item was actually received—that is, that the letter was placed in the recipient’s letterbox. This proof of delivery is therefore not suitable for documenting a typical sequence of events which, according to common experience, would allow the conclusion that the item has actually been received by the recipient – a prerequisite for prima facie evidence in the proceedings.
In this respect, the BAG concurs with the ruling of the LAG. However, in justifying its decision, the 2nd Senate of the BAG bases its reasoning exclusively on the time at which the delivery agent digitally confirms the delivery of the item.
The postman scans the barcode on the item in question and then confirms the delivery by means of a digital signature on his scanner. This time is recorded in the system and stored as a successful delivery. Only after this does the postman place the letter in the relevant letterbox. According to the court, the delivery receipt is, in any case, objectively untrue for a moment, as it confirms a delivery that has not yet taken place. Due to this discrepancy, a delivery receipt of this kind can only constitute prima facie evidence that the delivery person in question was standing in front of the recipient’s letterbox and was holding the item in their hand. However, this does not result in a significantly higher probability of the item actually being delivered than in the case of a standard letter.
The BAG further states that it is not unusual for the delivery person to be distracted or delayed between scanning the barcode on the item and placing it in the recipient’s letterbox, meaning that the delivery to the correct recipient – which had already been confirmed – did not in fact take place.
The court concurred with the assessment of the LAG that the delivery person’s witness statement was also unsuitable as proof of receipt of the item, as he stated that he could not recall the specific item, did not recognise his signature on the delivery receipt, and also failed to accurately describe the procedure for a digitized registered letter delivered in a letterbox.
III. Another ‘new’ mailbox-deposited registered letter
Deutsche Post reacted early to the expected ruling by the BAG and has once again amended the procedure for registered mail via mailbox. The previous ‘peel-off’ label, which had to be removed from the item and scanned after delivery, is not being reintroduced, but the digital confirmation process for derlivering the item into the recipient’s letterbox is said to have been optimized.
After the first scan of the barcode on the item, the postman must now first place it in the relevant letterbox and then sign on the scanner again. The date, time and signature are then recorded and stored after the item has been delivered. This is intended to counter the BAG’s argument that the delivery receipt is, at least for a moment, objectively untrue and is therefore not suitable for establishing that the item was actually placed in the letterbox. Furthermore, the stricter procedure for placing the item in the letterbox and documenting this is intended to lead to more conscientious compliance with the procedure by delivery staff.
IV. Outlook and implications for practice
The BAG upholding of the LAG’s judgement perpetuates the considerable legal uncertainty associated with it. In practice, neither an employer – for example, when sending a notice of termination – nor any other party to a legal transaction can rely on the fact that the receipt of their declaration of intent can be proven in court using the delivery receipt from the digitized ‘delivery by registered mail’ procedure.
Whether the procedure modified by Deutsche Post – whereby the postman confirms the delivery of the item only after actual delivery has taken place – satisfies the BAG’s requirements for prima facie evidence has not yet been clarified by the courts and cannot therefore be stated with certainty.
Even though Deutsche Post’s revised procedure has addressed the BAG’s main point of criticism – namely, the time discrepancy between the digital confirmation and the actual delivery – and should therefore, in principle, once again be suitable for establishing prima facie evidence in court proceedings, the BAG has not ruled on all the issues raised by the LAG.
In particular, the higher likelihood of an incorrect delivery arising from the mere scanning of a barcode on the item, as compared with the removal of a ‘peel-off’ label under the old procedure, has not been eliminated by the revision. Against this background, it remains to be seen whether the courts will attribute the same evidential value to the revised ‘mailbox registered mail’ procedure as they previously did to the old ‘peel-off’ label procedure. Pending a ruling by the highest court on this matter, it is therefore necessary to use one of the legally secure and verifiable methods of service for declarations of intent where receipt is of particular legal significance to the sender. These include, in particular, delivery by a courier who can attest to the contents of the letter and the time of delivery, personal delivery against a receipt, or service by a bailiff. These alternatives continue to provide sufficient certainty of proof that the recipient has received the document.