13.06.2022 Newsletter
Always topical: written form requirements in employment law and possibilities of using electronic form
In the course of the corona pandemic and the associated increasing digitisation of work processes, the question frequently arises, especially in personnel matters, as to which employment law transaction still even need to be made in writing at all, or whether a short e-mail exchange, for example, is sufficient to quickly and easily process certain matters.
Firstly, we summarise below the legal starting position for the legal situation applying in Germany. This is followed by a tabular overview of the typical employment law transactions and their formal requirements.
Written form or informal?
The legal questions concerning form are regulated by Secs. 125 et seqq. German Civil Code [Bürgerliches Gesetzbuch, BGB]. Pursuant to Sec. 125 sentence 1 BGB, a legal transaction that does not comply with the form prescribed by law or legal transaction (e.g. contract) is null and void. If the written form is required, Sec. 126 (1) BGB stipulates that the contractual document must be signed in person with the signatory's name. Alternatively, according to Sec. 126 (2) sentence 2 BGB, in case of contracts it is possible to only sign the document intended for the respective other party.
Thus, if no legal form is stipulated for the legal transaction, it can be carried out informally, i.e. also (simply) electronically. If the written form is stipulated, the legal transaction fundamentally requires a handwritten signature. A scanned signature, for example, would not be permissible here.
Electronic form
Written form may be replaced by electronic form unless the law expressly provides otherwise, Sec. 126 (3) BGB. In order to have the written form replaced by the electronic form, the issuer of the declaration must provide the document with a qualified electronic signature in accordance with Sec. 126a (1) BGB. In case of contracts, the parties must each provide an identical document with a qualified electronic signature in accordance with Sec. 126a (3) BGB. According to prevailing opinion, however, it also suffices here if the same file is signed by the parties one after the other in a qualified electronic manner. The electronic form may not have been expressly excluded, such as, for example, in the case of notices of termination and termination agreements (Sec. 623 half-sentence 2 BGB) as well as in the case of employers’ letters of reference (Sec. 109 (3) German Industrial Code [Gewerbeordnung, GewO].
One therefore should always check on a case-by-case basis whether electronic form is permissible and whether a qualified electronic signature is required. According to EU Regulation No. 910/2014 (the so-called eIDAS Regulation), a qualified electronic signature must meet particularly strict technical standards. The eIDAS Regulation distinguishes between three types of electronic signature. However, only the qualified electronic signature (Art. 3 No. 12 eIDAS Regulation) replaces the written form according to Sec. 126 BGB.
According to Art. 30 of the eIDAS Regulation, the conformity of qualified electronic signature creation devices with the requirements of the Regulation is certified by appropriate public or private bodies that are designated by the member states. In the Federal Republic of Germany, the German Federal Network Agency [Bundesnetzagentur, BNetzA] is responsible for checking private providers in accordance with Sec. 17 of the German Trust Services Act [Vertrauensdienstleistungsgesetz, VDG]. Without the required certification, there is no qualified electronic signature. A list of providers can be found on the homepage of the BNetzA.
Overview of individual legal transactions and possible written form requirements (status: 9 May 2022)
Legal transaction | Written form | Electronic form | Text form |
Employment contract (including amendment contract) | Not required | Permissible | Permissible |
Reduction of working hours (Sec. 8 (1) sentence 1 TzBfG) | Not required | Permissible | Permissible |
Letter of reference | Required | Not permissible | Not permissible |
Termination Agreement [Aufhebungsvertrag] | Mandatory according to Sec. 623 BGB | Not permissible | Not permissible |
Vocational training certificate | Mandatory according to Sec. 16 (1) sentences 2 and 3 BBiG | Not permissible | Not permissible |
Right to information pursuant to the German Remuneration Transparency Act [EntgTranspG] | Not required | Permissible | Permissible pursuant to Sec. 10 (2) sentence __ EntgTranspG |
Agreement of fixed term | Required pursuant to Sec. 14 (4) TzBfG | Permissible; but qualified electronic signature required | Not permissible |
Works council consultation (dismissal) pursuant to Sec. 102 BetrVG | Not required | Permissible | Permissible |
Shop agreement | Required pursuant to Sec. 77 (2) sentence 1 BetrVG | Permissible; but qualified electronic signature required in accordance with Sec. 77 (2) sentence 3 BetrVG | Not permissible |
Parental leave request | Required pursuant to Sec. 16 (1) sentence 1 BEEG | Permissible; but qualified electronic signature required | Not permissible |
Compensation and damages pursuant tothe AGG | According to the wording of Sec. 15 (4) sentence 1 AGG required | Permissible | Permissible |
Dismissal | Mandatory according to Sec. 623 BGB | Not permissible | Not permissible |
Request for nursing care leave pursuant to the German Nursing Care Leave Act [PflegeZG] | Required pursuant to Sec. 3 (3) sentence 1 and (4) PflegeZG | Permissible; but qualified electronic signature required | Not permissible |
Agreement of regulations with the works council | Not required | Permissible | Permissible |
Informing the works council in cases of co-determination pursuant to Sec. 99 BetrVG | Not required | Permissible | Permissible |
Temporary personnel measure pursuant to Sec. 100 BetrVG | Not required | Permissible | Permissible |
Claim to further employment of a vocational trainee of the youth and vocational trainee representation | Required pursuant to Sec. 78a (2) sentence 1 BetrVG | Permissible; but qualified electronic signature required | Not permissible |
Rejection of further employment of a vocational trainee of the youth and vocational trainee representation | Required pursuant to Sec. 78a (1) BetrVG | Should be permissible, since not explicitly excluded | Not permissible according to the wording |
Non-competition clause (post-contractual) | Required pursuant to Sec. 74 (1) HGB | Permissible; but qualified electronic signature required | Not permissible |
Note:
Changes to the statutory form requirements, be they as a result of amendments to the statutory provisions or case law, are fundamentally possible. A close eye should be kept on the current legal situation, especially in case of important legal transactions.
In the case of employment contracts, please also note the following: even if an employment contract does not require the written form, the situation may be different for individual clauses, such as the agreement of a fixed term.
Your contact: Daniel Gorks, [email protected], +49 221 2091-354