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19 December 2018
Ensuring that a dismissal notice has been properly delivered is vital – especially when the circumstances of the dismissal are difficult – as employers could face considerable procedural risks. Disappearing letter boxes or allegedly empty envelopes – unpleasant surprises are not unusual. Not to mention the serious legal and financial consequences of a failed delivery or the inability to prove proper service. If an employee sues and their employer cannot prove that the dismissal notice was properly served, the employer will lose and face re-issuing the dismissal notice. In which case the employer will be liable for any pay claims which accrue in the meantime. If, in the intervening period, the probationary period has ended or if other circumstances have changed to the employer's detriment, the prospects of success may be so small that there might then be little point in re-issuing a dismissal notice.
To ensure that serving a dismissal notice will withstand a court's scrutiny, it should be handed to the employee in person and the employee should countersign a duplicate. Occasionally an employee will refuse to confirm receipt, in which case the dismissal notice should be handed over in the presence of witnesses (someone from the company).
If for some reason the notice cannot be handed over in person (eg, because the employee is already on garden leave, on holiday or off sick), the dismissal notice must be served to the employee's home address. A normal letter is not an option because it does not ensure the legal certainty of proper service. Recorded delivery with a return receipt is not an option either as it demonstrates only that something was delivered. It does not document service of the content of the envelope in a manner which will satisfy the requirements of a court.
Usually, dismissal notices are placed in the employee's home letter box by a courier. The courier must have seen the letter's content, including the fact that it is a signed original, and have witnessed the dismissal notice being placed in the envelope which is then handed over to them. The courier should make a written record of service, recording their impressions at the place of service (eg, what the house looked like or where the letter box was).
If the circumstances of service are subsequently subject to closer scrutiny in unfair dismissal proceedings, the courier can then be heard as a witness to the content of the letter, including:
The task of serving the document will inevitably involve the courier seeing personal data (eg, the employee's name and address) and the content of the dismissal notice.
A courier can be a company employee or an external service provider.
If the courier is a company employee, they are not considered a 'third party' within the meaning of Article 4(10) of the General Data Protection Regulation (GDPR). The courier is then deemed to be acting for the employer in the employer's capacity as the data controller. There are thus no specific data protection implications stemming from the fact that the courier has seen the employee's personal data. In normal circumstances this falls within the scope of Section 26(1) of the Federal Data Protection Act as "being necessary to bring the employment relationship to an end".
However, if the dismissal notice is served by an external courier the legal situation may differ. The employer may have to comply with different data protection requirements to avoid breaching data protection law.
The act of passing an employee's personal data – name, address and content of the dismissal notice – to the external courier constitutes 'processing' within the meaning of Article 4(2) of the GDPR. This always requires a legal basis. As the data recipient, the courier is either a processor acting on a mandate from the employer or an independent controller. This distinction determines what legal requirements the employer must satisfy.
It would appear that the courts have not yet addressed this issue. If the external courier were a processor within the meaning of Article 4(8) of the GDPR, the employer and the courier would have to enter into a data processing agreement covering, among other things, the subject matter, duration, type of personal data and the controller's obligations and rights, and they would have to verify the controller's technical and organisational measures for protecting personal data. However, as a rule, the courier is unlikely to be classified as a 'processor'. Although the courier is acting on behalf of the employer in serving the dismissal notice, the employer's purpose in placing a contract with the courier is to ensure service of the dismissal notice in a manner which provides legal certainty and not to process data. The data processing is secondary, serving merely to allow the courier to fulfil its primary task of serving the document. Normally, therefore, the courier will not be deemed to be processing data for another party and will be categorised as an 'independent data controller'.
Hence, the employer can pass personal data to the courier only if it has a legal basis to do so. Under Section 26 of the Federal Data Protection Act, data processing is lawful if it is necessary in order to end the employment relationship. The conflicting interests of the employer and the employee must be weighed up against each other (the principle of proportionality). The employer passes information to the courier for the purpose of serving the dismissal notice. In the absence of other feasible alternatives for proving valid service, the employer has a valid interest in doing this. As the personal data disclosed in this process is limited, the conflicting interest of the employee is unlikely to override that of the employer. Nonetheless, it is advisable to have the courier sign a non-disclosure statement.
Under Article 13 of the GDPR, the employer must inform the employee concerned that their personal data has been passed on. Employers should include wording to this effect in the general data protection information that they provide to employees, for example under "disclosure of personal data to external service providers". Ultimately, the data protection risks involved in using an external courier for serving dismissal notices can be minimised by having the courier sign a non-disclosure statement. If the employee were to challenge dismissal in the courts, the employer could then argue that any data privacy breaches would not invalidate the dismissal as such.
For further information on this topic please contact Marion Bernhardt at CMS's Berlin office by telephone (+49 30 20360 0) or email (firstname.lastname@example.org). Alternatively, contact Jan Peter Schiller at CMS's Cologne office by telephone (+49 221 7716 0) or email (email@example.com). The CMS website can be accessed at www.cms-hs.com.
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Jan Peter Schiller