The use of the electronic registered letter by employers

In the employer/employee relationship, the use of formal registered letters with acknowledgement of receipt is usual, as it is most often the only way to evidence the reception of a letter or document by the employee at a precise date. Such a form is even mandatory in certain cases such as dismissal notification.

The electronic registered letter: an existing system which will be improved starting from January 1st, 2019

Since 2011, it is possible to use electronic registered letters for all types of civil contracts, including employment contracts. However, so far, the electronic registered letter was a sort of “hybrid” system, as the registered letter was collected under electronic format but distributed on a paper format by postal services.

As from January 1st, 2019, this “hybrid” form of e-letter will disappear and be replaced by a new and fully electronic form of registered letter. Thus, there will only be two types of registered letter remaining:

• The traditional paper registered letter delivered by postal services,
• The electronic registered letter delivered by electronical means through a dedicated provider.

To encourage the use of the electronic registered letter, several guarantees have been implemented such as the prior verification of the sender’s and the recipient’s identities, the proof of receipt by the recipient of the transmitted data and time of deposit.

The following conditions are provided by a Decree n°2018-347 dated May 9, 2018:

• The service provider provides the sender with a proof of electronic sending that shall be retained for at least one year,
• The service provider must inform the recipient that an electronic registered letter is intended to him and that he has the possibility, within a period of 15 days, to accept or refuse the letter,
• At this stage, the recipient does not know the identity of the sender,
• If the recipient accepts to receive the electronic registered letter, the service provider will forward it to him,
• The service provider keeps the proof of reception by the recipient of the transmitted data and the proof of the timing of reception during at least one year,
• If the recipient refuses to obtain or does not ask for the letter, the service provider gives the sender a proof of refusal and keeps it for at least one year.

The electronic registered letter can also be used in the context of a termination

Up until now, the legal text expressly mentioned that it was possible to use the electronic registered letter for all matters relating to the conclusion or the execution of a contract.

However, there was a small doubt about the possibility to use it for the termination of a contract. According to the Ministry it was possible, but this option was not expressly contemplated by any legal provision.

Given the new Article L.100 of the French Postal and Electronic Communication Code, there is no longer a doubt on this point: the electronic registered letter can be used anytime when the French Labour Code requires the use of a registered letter, including in case of dismissal or termination.

As a consequence, the electronic registered letter may be used, for example, to summon an employee to a pre-dismissal meeting or for the notification of an employee’s dismissal.

The employee’s prior consent needs to be collected

However, the employer should be careful before using the electronic registered letter.

According to the above-mentioned Article L.100 of the French Postal and Electronic Communication Code, when the recipient of the electronic registered letter is not a professional, which is the case for an employee, it is necessary to obtain his prior consent before using electronic registered letters.

To do so, it is first recommended to get the employee’s consent on the future use of electronic registered letters. This should be done through a dedicated document rather than by inserting a clause in the employment contract.

There are still some outstanding questions

If the use of the electronic registered letter can be source of securisation, it is necessary to be careful on the following points:

• It is still not clear if the electronic registered letter can be used when one of the parties is not implemented in France (e.g. foreign employers having employees in France).
• It will be necessary to observe the actual implementation of this system in order to ascertain its reliability.
• The service provider is only required to keep a proof of the electronic filing for one year. This short period could trigger issues on the employer’s side in case of subsequent litigation with the employee.

It is also necessary to mention the fact that in case of late reception or lost of data, the service provider’s liability is capped at € 16.

Therefore, the implementation of this new form of electronic registered letter is an improvement and may ease communication between employers and employees in the future. At some point, regular registered letters will most certainly be totally replaced by e-registered letters. But it is recommended to use it carefully for the time being, especially in case of termination as there are still outstanding questions.