‘You have a new email. Subject: you have been dismissed.’ Emails of this type may be valid if it can be evidenced that the employee has received it and that this is the usual channel for communication between the parties.
The Canary Island High Court has accepted that a termination of contract notified by email is sufficient to notify the worker of that step. This was found to be so in a judgment delivered on November 18, 2022 (no 741/2022) examining a specific case in which email was the usual medium for communication between employee and employer.
Does this mean we can leave behind for ever notices of dismissals in person and the traditional bureaufax with acknowledgment of receipt and certified contents and replace all that with just an email?
The reply to this question is not that straightforward.
The case law to date has been that channels such as WhatsApp or email do not fulfill the provisions on how notice of dismissal must be given which are contained in article 55.1 of the Workers’ Statute, because (i) these channels do not provide a record of correct receipt of the dismissal letter by the intended recipient, and (ii) they may clash with the employee’s right to privacy and the data protection legislation.
This was found, for example, in judgment no 2070/2021 of May 20, 2021 by the Galician High Court.
So what led the Canary Islands High Court to rule that it was sufficient to send a notice by email?
In this specific case, the employer produced at the trial a number of items of proof by which it was able to evidence that the employee concerned had been notified of termination of his contract through an email on July 9, 2020, and also that email was the usual communication channel between the parties.
Accordingly, that high court ruled that, based on these circumstances and the fact that the Workers’ Statute does not require notice of termination of a contract to be given on any specific channel, that termination was held to be correctly notified by email.
However, this ruling by the Canary Island High Court should not be seen as general permission for employers to notify their dismissals or contract terminations by email, because (i) for the time being it is an isolated judgment, and (ii) it will not always be easy to evidence that the worker received that email correctly and that this was the usual channel for communication in the employment relationship.
Departamento Laboral de Garrigues
