Blue checkmarks confirm receipt

06 Nov 2019

Pursuant to article 7:668 of the Dutch Civil Code, an employer is obliged to inform an employee ultimately one month prior to the end date of his fixed-term employment agreement whether or not the agreement is to be renewed. The question of whether an employer has complied with this obligation is often under debate. In a recent ruling by the court in Rotterdam for example it was disputed whether an employer had provided notification of the termination of the fixed-term employment agreement to its employee.

Jasper Pot

In this instance the employee had – briefly put – entered a wage claim against the employer. The employer took the view that it did not owe the employee any wages, since it had timely informed the employee that the employment agreement would not be renewed. The fixed-term employment agreement had, according to the employer, therefore ended by operation of law.

The employee contested receipt of the notification by the employer. Since the employer asserted that the letter had been sent, the employer was expected to provide evidence accordingly. The employer did so, by first entering into evidence the letter of notification. Subsequently, the employer showed the court that the email in which the letter was sent to the employee was in fact listed in the email box under “sent items”. The employer demonstrated this in court on a laptop.

The element considered decisive by the court was the fact that the employer had also informed the employee of the notification per WhatsApp message. The employee contested receipt of the WhatsApp message by the employer. By way of proof, the employee showed print screens of her mobile phone that showed that she had not received any messages from her employer in the period that the message had supposedly been sent by the employer.

In court, however, the employer showed the presiding judge his mobile phone to demonstrate that the messages had truly been sent. Alongside the message were two blue checkmarks. The court concluded from those that the message had not only been sent, but also that the employee had received and read the message. WhatsApp displays two blue checkmarks alongside a message as soon as that message has been opened by the recipient. As stated in a previous ruling by the court in Groningen (ECLI:NL:RBGRO:2012:BY2140), this provides conclusive proof that the message was delivered to the phone of the recipient and that the recipient did open the message.

That according to the court established that the employee must have received the notification and must moreover have opened it. Therefore, the employment agreement has ended by operation of law. For that reason, the employee was not entitled to payment of salary.

This ruling shows that when it comes to providing evidence of receipt of a letter by an employee, an employer may use all possible means available. The days of a transmission receipt from the fax machine may be long gone, but fortunately modern technology also allows for adequate means of proof.