What was the issue?
The employee had been unfit for work for periods of more than six weeks in each of the three years prior to the dismissal. Following a bEM offer in April 2023, to which he did not respond, he again took significant periods of sick leave. The employer therefore sent a further bEM invitation by registered post with delivery confirmation in October 2023. The employee denied having received it. Without further bEM proceedings, the employer terminated the employment contract in December 2023 on grounds of ill health. The Federal Labour Court (BAG) ruled that the dismissal was invalid because the employer was unable to prove that the invitation had been received, either through prima facie evidence or by questioning the post office official.
New bEM despite previous lack of response
The Federal Labour Court (BAG) confirms: if an employee has initially declined an offered bEM, the employer must, in principle, take the initiative again if, within one year, the employee is again unable to work for a total of more than six weeks. It is not necessary for a full year to have elapsed since the earlier refusal or failure to respond. New periods of absence may have altered the employee’s willingness to participate.
Why the scan receipt from that time was not sufficient
The decisive factor was the delivery procedure established during the proceedings. According to this, the delivery driver scanned the consignment and signed the electronic confirmation before placing the registered letter in the letterbox. The delivery receipt was therefore generated at a time when the item had not yet been received. The Federal Labour Court (BAG) therefore found that the typical sequence of events which might justify prima facie evidence was lacking. The Federal Court of Justice (BGH, 27 September 2016 – II ZR 299/15 – para. 33) had affirmed the existence of such prima facie evidence in the case of a registered letter posted in a letterbox, however, its decision was still based on the so-called ‘peel-off label’ procedure, in which the peel-off label was removed by the delivering postman, affixed to a prepared delivery note and, after posting, signed by the postman with the date indicated.
Update: Deutsche Post has changed the delivery process
According to Deutsche Post, a digital procedure will remain in place; there will be no return to the previous ‘peel-off label’ system. From now on, however, the postman is to first post the item and then digitally confirm the posting immediately afterwards. The documentation is intended to capture both the signature and confirmation of posting via the scanner. This specifically addresses the time-related weakness that the Federal Labour Court (BAG) had criticised. It remains to be seen whether the BAG will consider this sufficient.
What employers should now bear in mind when giving notice of termination by post
- Anyone using registered post with proof of posting should retain the current proof of delivery, including a photo of the item being posted or a delivery receipt.
- For notices where proof of receipt is particularly important, it is preferable to ensure delivery in a way that can be verified by a witness at the time of posting or handover.
- Following further periods of incapacity for work lasting more than six weeks, it must be assessed whether a new bEM should be offered – even if the last invitation was less than a year ago.
Reference: Federal Labour Court (BAG), judgement of 7 May 2026 – 2 AZR 184/25
On the current delivery process: Deutsche Post – Registered Post | Deutsche Post – Help with Registered Post | BRAK, 21 July 2026
Current terms and conditions: Deutsche Post – Terms and Conditions for BRIEF NATIONAL (valid from 01/2025)
Conclusion
Proving delivery by registered post with return receipt remains subject to risks. The Federal Labour Court (BAG) has ruled that the current delivery procedure does not constitute prima facie evidence. It remains to be seen whether the new procedure introduced by the Post Office will be assessed differently. Employers should therefore, in the case of dismissals etc., give preference to delivery by personal hand-over in the presence of witnesses or by placing the letter in a letterbox in the presence of witnesses.
Key points in brief
- The Federal Labour Court (BAG) has ruled that, in the case of registered post delivered via a letterbox, there is no prima facie evidence to support the previous scanning procedure.
- Deutsche Post has already changed its delivery process. Whether the new procedure, including retrospective confirmation and a photograph of the item being posted, constitutes prima facie evidence has not yet been clarified by the Federal Labour Court (BAG).
