Dismissal by E-Mail from Abroad? Federal Labour Court on Choice of Law, Notice Periods and Form (Rome I Regulation)

In its judgment of 22 August 2024, the Federal Labour Court (Bundesarbeitsgericht, BAG) made clear that the extended notice periods under § 622(2) of the German Civil Code (BGB) are mandatory German employee protection law. A contractual choice of law in favour of US law does not change this if the habitual place of work is in Germany. Under Art. 8 of the Rome I Regulation, a choice of law may not deprive the employee of the protection that he or she would enjoy in the absence of such a choice.

In the underlying case, the claimant worked with a home base in Frankfurt for a US airline. The employment contract subjected the relationship to the law of a US state. Under that law, the "employment at will" principle generally applies, i.e. termination without statutory notice periods. Under German law, by contrast, the notice periods under § 622(2) BGB increase with the length of service. This provision is mandatory and cannot be excluded to the detriment of the employee by a choice of law. Had German law applied exclusively, the dismissal would therefore only have taken effect upon expiry of the longer period provided for there.

Also of particular relevance was the question of the form and the place of the dismissal. The notice of termination was not handed over in the classic written form within the meaning of § 623 BGB but was declared from abroad by e-mail. Under German law, such a dismissal would in principle be invalid for lack of written form. § 623 BGB mandatorily requires a handwritten signature; the electronic form is expressly excluded.

However, the BAG made clear that, in an international context, the form of a dismissal is governed by the conflict-of-laws rules. Art. 11 of the Rome I Regulation is decisive in particular. Under that provision, it is sufficient under certain conditions if the form complies with the law of the state in which the declaration was made. So if, under the applicable US law, a dismissal is possible without any formal requirements – including by e-mail – the absence of the German written form does not automatically lead to invalidity.

The place at which the notice of termination was declared therefore played a central role. If the notice was declared abroad and satisfied the formal requirements there, it could be formally valid even if it would not have met the requirements of § 623 BGB under purely German law.

The German notice periods are mandatory and apply despite a choice of law if Germany is the habitual place of work. The strict German formal requirements, by contrast, do not apply without restriction internationally but depend on the applicable conflict-of-laws rules and on the place where the notice is declared. International employment contracts therefore do not create complete freedom from legal constraints. Employers should therefore carefully examine both the habitual place of work and the place and manner of the notice of termination before relying on foreign law.