BAG: Prima facie evidence of a registered letter and abuse of rights in the Equal Treatment Act (AGG)

Registered mail - prima facie evidence of delivery at normal postal times

The (timely) receipt of letters of termination is highly relevant in employment law.

Recently, the Federal Labor Court (Bundesarbeitsgericht, “BAG”) dealt with the very practical question of whether, in the case of a registered letter, prima facie evidence (and thus a considerable procedural facilitation of evidence) is available that it was delivered during normal postal hours (BAG, 2 AZR 213/23).

One employee denied that the letter of termination was posted (and received) at normal postal times. It was therefore not expected to be received until the next day. The employer, on the other hand, argued that there was no indication that the letter was delivered outside of normal local hours.

In the ruling, the Federal Labour Court decided that the delivery receipt from Deutsche Post serves as prima facie evidence that the letter was delivered accordingly and at normal postal times (see already: Karcher/Mengestu in DB 2021, 565 and Nebeling/Karcher BB 2017, 437). The employee must therefore explain why this was an atypical case and first rebut the prima facie evidence.

New line-up in the Equal Treatment Senate - abuse of rights revived

On 19 September 2024, the Federal Labour Court (Eighth Senate in a new composition chaired by Prof. Dr. Spinner, 8 AZR 21/24) ruled that claims for compensation pursuant to Section 15 (2) AGG may be precluded by the argument of the claim being an (in this case, probably systematic) abuse of the plaintiff’s rights. The plaintiff, who initiated numerous equal treatment lawsuits (as has his lawyer previously in their own case in the same court), failed with his claim for compensation (regarding the plaintiff’s application for a position as "office clerk/secretary", which was not advertised in a gender-neutral manner) [NB: only female grammar was used for the position names in the original German job posting, which he took as indication for gender discrimination] due to abuse of rights or lack of seriousness. Although employers are strongly advised to pay close attention to placing correct job advertisements, it is nevertheless to be welcomed that plaintiffs who wish to systematically abuse the Equal Treatment Act (AGG) are being put a stop to. The LAG Hamm (lower court, 6 Sa 896/23) came to the conclusion, based on the entire contents of the file, that the plaintiff was acting systematically and purposefully in order to "earn" an adequate profit through compensation claims without having an interest in the position advertised by the defendant. The Federal Labour Court confirmed this and could not identify any legal error in this regard and therefore completely disregarded the potential conditions of any damage entitlement themselves, as there was in any case an abuse of rights by the plaintiff. In this respect, Germany and the EU have not yet fully arrived in the American system and it can be hoped, from the point of view of the economy and the already overburdened courts, that such abusive claims will also be denied success in the case law of the lower courts. However, everyone agreed that this would not be the last such case.

Finally! – Digital employment contracts permitted

The Bureaucracy Relief Act IV was passed, so that from 1 January 2025, employment contracts can also be concluded in (digital) text form. This change was overdue and also applies to the fixed term clause for retirement age that is usually included in employment contracts (but not to other time limitations and fixed-term contracts that still require wet-ink signatures).

There are also changes for employee leasing contracts, which in the future can also be concluded in text form.