Terminating an employment contract by email: valid or not?

  • Ceyda Sahin
  • 25. January 2025
  • 14:12
Terminating an employment contract by email

In our digitalised world, it is not uncommon to perform everyday tasks by email – but what about terminating an employment contract by email? Imagine sitting at your desk when suddenly you receive an email from your boss telling you that your employment has ended. Or you want to quickly hand in your notice by email to ensure a smooth transition to a new job. However, according to the German Civil Code, the termination of an employment relationship must be in writing; any kind of ‘electronic form’ is invalid, including email, but also SMS, WhatsApp, etc. The same applies to the transmission of a copy in electronic form.

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The most important information in brief:
  • The termination of an employment relationship must be in writing.
  • Terminations by email, WhatsApp or even SMS are therefore invalid.
  • If the written form is not observed, the employment relationship continues to exist.

What does the law say about termination by email?

The German Civil Code (Section 623 BGB) stipulates the written form for terminations. This means that a document must be signed by hand. This makes termination by email invalid. Even a document printed out with a digital signature does not meet these requirements. Rather, a letter of termination must always be printed out and signed by hand with a pen (‘wet ink’) on paper.

Further examples of invalid terminations are:

  • oral terminations
  • terminations via social media
  • terminations via fax or SMS

Both employer and employee must therefore give notice in writing. If the written form is not complied with, the notice of termination is simply invalid. Incidentally, this applies to all notices of termination, i.e. for ordinary and extraordinary notices of termination, as well as for notice of dismissal. The written form must also be observed for cancellation agreements.

Is it permissible to give notice via WhatsApp?

Electronic forms of communication such as WhatsApp, Facebook, email or text message also do not meet the requirements of the written form and are therefore invalid. Simply sending a ‘copy’ of the signature, e.g. as a photo via WhatsApp, also does not meet the legal formal requirement. Employees and employers should ensure that terminations are always made in the legally required written form to avoid legal problems.

Protective and evidential function of the written form

The written form protects employees. It ensures that the notice of termination actually comes from the signatory and is not issued in error or rashly. It also has an evidential function. In the event of a legal dispute, it can clearly prove that the notice of termination has been issued and under what conditions it was issued.

The German Civil Code (Section 126a BGB) does in principle allow the written form to be replaced by the electronic form. In this case, the electronic document must be provided with a qualified electronic signature that is created by special software and a certified provider.

However, there is an exception to this in labour law (Section 623 of the German Civil Code): this stipulates that electronic form is not permitted for terminations. This means that even a qualified electronic signature is not sufficient to fulfil the written form requirement for terminating employment relationships. Therefore, terminations must continue to be made in writing and cannot be replaced by electronic form.

Important: The employee must receive the original letter of termination for it to be effective. If the employee does not receive the letter of termination, the employment relationship continues. If the employee disputes having received the letter of termination, the employer (!) must prove in court that the employee did receive the letter of termination (the original).

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Termination by email: employment relationship continues

A termination by email is invalid. Therefore, the employment relationship continues to exist in legal terms. If, for example, an employer terminates by email and believes that this is legally effective, they could even be in default of acceptance if they do not continue to employ the employee. This means that the employee is then entitled to wages even without work. However, since this depends on the specific circumstances of your case, it is advisable to consult a specialised lawyer. If, on the other hand, the written form is not observed in the case of a dismissal with the option of altered conditions of employment, the employment relationship continues unchanged under the previous conditions.

Incidentally, if the written form requirement is violated, it is not necessary to file a dismissal protection suit within three weeks. This means that you do not have to observe a deadline to assert the violation of the formal requirement.

Examples:

For example, the Berlin-Brandenburg Higher Labour Court ruled that a termination is invalid if it is not signed. Although the plaintiff had missed the three-week deadline for filing a lawsuit under § 4 KSchG, the court ruled that the invalidity of such a termination can be asserted even after the expiry of this period. This is in line with both the wording of the law and the rulings of the highest courts. (Higher Labour Court of Berlin-Brandenburg, decision of 14 April 2010, 12 Ta 363/10)

If you receive a notice of termination that is invalid in form (e.g. termination by email), it is still advisable not to take too long. For example, in another case, the Higher Labour Court of Berlin-Brandenburg stated that a period of six weeks is the limit before the right is forfeited. The claimant had waited seven months before filing a lawsuit. The court deemed that he had forfeited his right and was therefore no longer able to enforce his rights (Higher Labour Court of Berlin-Brandenburg, decision of 16 August 2010 – 25 Ta 1628/10). It is therefore advisable to consult a specialist in labour law immediately so that he can advise you on how to react to the invalid termination.

Will it be possible to terminate contracts by email in the future?

The Federal Ministry of Justice had announced some time ago that it should be possible to terminate employment contracts by email in the future. The ministry had argued that the regulation is no longer up to date and that legislation should be adapted to modern digital communication. Therefore, the plan was to change the law so that e-mails would be recognised as a legally valid form of termination. It may be that this is true. But for employees, the existing regulation is of course more favourable. We therefore have serious doubts that such a change will actually be implemented in the next few years.

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All information on our website is of an editorial nature and expressly does not constitute legal advice. Naturally, we have made every effort to ensure the accuracy of the information and links contained on this website. Nevertheless, we cannot guarantee the accuracy of the information. It is in no way a substitute for legal advice from a lawyer.