Festivities, fireworks, and a firing

On a late afternoon in the middle of the preparations for New Year's Eve, a chief financial officer in a craft business received a termination by e-mail. The subject matter of the e-mail was "Termination" and it arrived on the employee's work phone just after being sent on 31 December. However, the employee did not see the e-mail before 2 January, and he confirmed receipt the day after. Consequently, he calculated his notice from January, not December.

The company paid for the employee's phone and computer, but the employee had left his phone to charge in his basement throughout the Christmas holiday. During his employment, he had previously read and sent e-mails outside regular working hours, including on several weekends. The most applied communication form in the company was e-mail.

It was not common practice internally to set up an autoreply during the holidays. There was also no policy for the use of an autoreply in place. The employee had not informed the company that he would be unavailable during the Christmas holiday.

New Year's party was no excuse for not checking e-mail

Termination is effective from a specific month when the company can expect the employee to have seen the termination by the end of the month.

It was clear that the e-mail had arrived to the employee on New Year's Eve. The High Court found that the company could have expected the employee to read the e-mail before midnight. Among other things, this was because the employee had previously read and sent e-mails outside regular working hours. It also played a role in the assessment that the company's primary form of communication was e-mail.

Therefore, the High Court rejected the employee’s explanation that he had not seen the e-mail as his phone had been charging. The High Court then stated that the employee had been terminated upon receipt of the e-mail on New Year’s Eve, not on 2 January when he read it.

IUNO’s opinion

This case shows that companies must make sure that employees have the opportunity to see a termination for it to become effective.

IUNO recommends that companies send terminations with a proof of delivery to the extent the termination is not delivered personally. When termination occurs by e-mail, companies must prove that the employee received it. If an e-mail is sent outside regular working time, companies must be able to prove that the employee could be expected to check the e-mail before the end of the month. This burden of proof can be difficult to lift and may, for example, require that the employee usually checks the e-mail outside regular working time.

[The Danish Eastern High Court in case BS-39495/2021-OLR of 2 June 2022]