Antwerp Labour Tribunal confirms the possibility to notify the reasons for terminating an employment contract for serious cause through qualified electronic registered delivery: 3 key takeaways

In the present case, the reasons for terminating the employee’s employment contract for serious cause are notified to the employee via a qualified electronic registered delivery service. The employee contests this dismissal. He believes that notification by e-mail is contrary to the formal requirements of article 35, fifth paragraph of the Employment Contracts Act. This article stipulates that the notification of the reasons for terminating an employment contract for serious cause must be made either by letter sent by registered post or bailiff’s writ. The employee argues that 'post' refers to bpost. This company would be the only one licensed to deliver letters by post. Furthermore, the dismissed employee argues that 'letter' refers to a paper carrier, which can never be an e-mail.

The Antwerp Labour Tribunal refers to article 43, §1 Regulation No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (hereafter the “eIDAS Regulation”). This article stipulates that data sent and received using an electronic registered delivery service shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements of the qualified electronic registered delivery service.

Article 44, §1 of the eIDAS Regulation confirms the requirements a delivery service must meet to be considered a qualified electronic registered delivery service (hereafter “QERDS”):

• the service is provided by one or more qualified trust service provider(s);
• the service ensures with a high level of confidence the identification of the sender;
• the service ensures the identification of the addressee before the delivery of the data;
• the sending and receiving of data is secured by an advanced electronic signature or an advanced electronic seal of a qualified trust service provider in such a manner as to preclude the possibility of the data being changed undetectably;
• any change of the data needed for the purpose of sending or receiving the data is clearly indicated to the sender and addressee of the data;
• the date and time of sending, receiving and any change of data are indicated by a qualified electronic time stamp.

The above provisions have direct effect and, therefore, do not need to be transposed into Belgian law. The European Commission has published a list of active QERDS in Belgium here.

Furthermore, the Antwerp Labour Tribunal refers to article XII.25 §7 of the Economic Law Code, which provides that, subject to the application of specific legal or regulatory requirements:

• where a legal or regulatory text expressly or implicitly requires registered mail, this requirement shall be deemed to have been met by using a QERDS;
• where a legal or regulatory text expressly requires registered mail, a QERDS shall be considered to have been used if the user of the service opts for the electronic solution.

The Antwerp Labour Tribunal confirmed that a qualified electronic registered delivery which fulfils the strict requirements provided by the eIDAS regulation is assimilated to a physical letter sent by registered post. It considered that the qualified electronic registered delivery through the concerned QERDS (in this case Connect Solutions) provided the same guarantees as a physical letter sent by registered post for the following reasons:

• When the sender submits a letter via a qualified electronic registered delivery, the letter is assigned a fixed date and time. This is relevant for assessing whether the serious cause was notified in a timely manner.
• Both the sender and the recipient were identified by Connect Solutions through e-ID or itsme, which are platforms secured by facial recognition or a personal code. The qualified electronic registered delivery therefore cannot be opened by anyone else.
• The recipient effectively received the dismissal letter, evidenced by her reaction in an e-mail.

Consequently, the Antwerp Labour Tribunal confirms that the reasons for terminating an employment contract for serious cause were validly notified through qualified electronic registered delivery.

Since the Antwerp Labour Tribunal’s judgment can still be appealed, employers should be cautious when using qualified electronic registered delivery for dismissals for serious cause.