Fourth Bureaucracy Reduction Act – Practical questions & answers

The world of work is increasingly shaped by Digitisation. In this environment, the simplification of bureaucratic processes is constantly gaining in importance in order to relieve the burden on companies and establish more efficient workflows. This goal is also pursued by the Fourth Bureaucracy Relief Act (Bürokratieentlastungsgesetz IV, “BEG IV”), which came into force on 1 January 2025 and with which the outgoing legislator wishes to promote the reduction of administrative hurdles and digitisation in the economy.

Back in October 2024, we reported on the formal simplifications in employment law associated with the BEG IV (see our article of 18 October 2024). Now that the Act has come into force, questions arise in practice as to what employers need to consider when implementing the BEG IV and how they can make optimum use of the new formal requirements. The following article examines the practical consequences of the Act from an employment law and IT law perspective and provides guidance on how to apply the new formal requirements under the BEG IV.

1. The "modified text form" pursuant to the Act on Proof of Conditions Applicable to an Employment Relationship (Nachweisgesetz, “NachwG”) in practice

1.1 How do you conclude an employment contract in accordance with Section 2 (1) sentence 2 of the NachwG (new version)? Is a separate e-mail from the applicant sufficient or does the applicant have to specifically refer to the offer in the e-mail?

Even under the previous legal framework, no specific form was required for concluding a valid employment contract. However, proof of the essential terms and conditions of employment pursuant to the NachwG had to be provided in writing (Section 126 of the German Civil Code (Bürgerliches Gesetzbuch, “BGB”). Since 1 January 2025, employers are able to send employment contracts and the essential terms and conditions of employment contained therein to applicants electronically.

According to Section 2 (1) sentence 2 NachwG (new version), text form (Section 126b BGB) is sufficient for documenting the essential terms and conditions of employment. When the essential terms and conditions of employment are sent electronically, the additional requirements stipulated by law must be complied with. For this purpose, the essential terms and conditions of employment must be made accessible to the employee and it must be possible for the employee to save and print them. The employer must also ask the employee to provide proof of receipt (so-called modified text form).

For the conclusion of an employment contract it then suffices if the applicant sends a separate e-mail confirming receipt of the employment contract, including the essential terms and conditions of employment, and agrees to the conclusion of the contract, i.e. makes specific reference to the offer formulated in the e-mail. Here, it is advisable for the employer and applicant to exchange their declarations in the same format and preferably in a uniform document. The exchange should be documented in a comprehensible manner by means of continuous e-mail correspondence.

1.2 Can the proof according to Section 2 NachwG be waived? What else is relevant?

If the employment contract already contains the information required in accordance with Section 2 (1) NachwG and if it was sent to the employee in the electronic form described, additional proof of the employment conditions is not required (Section 2 (5) NachwG).

As an exception, employers must provide written documentation of the essential terms and conditions of employment at the employee's request (Section 2 (1) sentence 3 NachwG, old version).

Please note that the modified text form only applies to the conclusion of indefinite employment contracts. Fixed-term employment contracts - with the exception of the limitation of contractual terms to the standard retirement age (Section 41 (2) of the German Social Code Book VI (Sozialgesetzbuch VI, “SGB VI”) - must still be in writing in order to be valid in accordance with Section 14 (4) of the German Part-Time and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz, “TzBfG”).

1.3 Do security precautions have to be taken when sending contractual documents by e-mail (e.g. password or encryption)?

There is no general regulation for encrypting and securing e-mail traffic in connection with the sending of documentation permitted in text form. In particular, no data protection encryption is required when sending e-mails.

However, with regard to the sending of essential terms and conditions of employment within the meaning of Section 2 (1) sentence 1 NachwG (new version) in electronic form, please note that the employer must provide the e-mail with a corresponding proof of transmission or receipt. Beyond this requirement, no specific signature - not even a qualified electronic signature pursuant to Section 126a BGB - is required for the electronic form.

In contrast to this, the electronic form applies when providing an employment reference (Section 630 sentence 3 BGB new version). Accordingly, the employer, as the issuer of the employment reference, is obliged to provide the electronic document with a qualified electronic signature. Recourse to the written form is mandatory if the qualified electronic signature allows inadmissible conclusions to be drawn to the employee’s detriment due to the time information it provides. This is the case, for example, with backdating, which is legally required when an employment reference is corrected.

Although encryption and a separate backup of the documentation are not required, it may still make sense to do so in certain situations, especially when transmitting particularly sensitive data. It is advisable to ensure the security of e-mail traffic through organisational and technical measures (e.g. additional password protection) in order to minimise possible risks of unauthorised access.

1.4 In what form is the "proof of receipt" pursuant to Section 2 (1) sentence 2 NachwG when the terms and conditions of employment are transmitted and what are the consequences if the employer fails to request this or if the employee fails to provide the proof of receipt?

Currently, the prevailing opinion regarding the requirements for a confirmation of receipt pursuant to Section 2 (1) sentence 2 NachwG (new version) is that an acknowledgment of receipt by e-mail is permissible.

According to Section 2 (1) NachwG (new version), when transmitting the letter the employer should only request that the employee provides proof of receipt. However, the actual submission of corresponding proof by the employee is not decisive. In contrast, the EU Directive on which the NachwG is based requires that the employer actually receives proof of transmission or receipt (Art. 3 sentence 2 Directive (EU) 2019/1152). The Directive itself also does not contain any formal requirement regarding proof of receipt, which means that the proof presumably only serves to preserve evidence the event of a dispute. Accordingly, a read receipt should be sufficient for an information letter sent by e-mail.

Proof of receipt may also be necessary for transcripts in text form that are not transmitted electronically. The wording of the law does not differentiate with regard to the type of transmission, which means that the employer should also request proof of receipt in these cases for evidentiary purposes.

However, if the employer fails to make the request, this constitutes a breach of the obligation to provide evidence and thus an administrative offence pursuant to Section 4 (1) No. 2 NachwG (new version), which can be punished with a fine of up to EUR 2,000. In the event of legal disputes, the employer also faces difficulties in providing evidence regarding the agreed terms and conditions of employment. The employee's failure to provide proof of receipt, in contrast, does not constitute sanctionable behaviour. In case of doubt, the employer bears the burden of representation and proof of the receipt of the transcript and the request to submit proof of receipt. It is therefore imperative that the employer asks the employee again for proof of receipt and, if need be, resorts to traditional delivery in written form against proof of delivery if the employee does not respond.

​​​​​​​1.5 Do the company's data protection notices need to be adapted?

Whether and to what extent there is a need for adjustment depends on the content of the existing employee data protection notices in the company. When the employer sends an employment contract by e-mail and stores the confirmation of receipt and the applicant's reply, it is processing the applicant's personal data (in particular the applicant's e-mail address and the content of the reply e-mail). These processing activities must be described in the employee data protection notices, in particular stating the purposes pursued, the applicable legal bases and the storage period. Some companies will already have included a section in their data protection notices that covers processing in connection with e-mail communication with applicants. Even in such cases, however, companies should critically check whether the notices fully cover the processing activities mentioned. This is because there may be deviations from standard e-mail communication, in particular because longer storage periods are necessary for proof of the conclusion of the contract than for standard e-mail communication with applicants.

​​​​​​​1.6 Are there any other requirements for PDFs etc. that are used for sending (e.g. naming the creator in the document properties)?

There are no further requirements for document types that are used for sending. However, it is advisable to use PDF documents that the applicant cannot change and that can be archived in an audit-proof manner over long periods of time (see point 2). The PDF/A format, which was specially developed for this purpose, fulfils these requirements.

​​​​​​​1.7 Are agreements made by e-mail between employees and managers binding? How can the employer prevent this?

Agreements between employees and managers that are made by e-mail can, in principle, be legally binding. One must check whether a special form is required for the underlying legal transaction. For evidence purposes, it is advisable to implement standardised company formal requirements, especially in the case of long-term agreements (e.g. home office agreement).

In order to prevent an agreement from becoming legally binding, the employer can include provisions in the employment contract - usually in the form of general terms and conditions ("GTC") - according to which amendments and additions to the employment contract require a certain form (e.g. written form). In companies with a works council, such formal requirements may be stipulated in particular as part of a shop agreement.

2. Legal consequences of changes to the files sent by the company

2.1 What happens if an applicant/employee edits and returns an editable PDF and this is possibly only realised at a (much) later date?

In order for a valid employment contract to be concluded between employer and applicant, the declarations of both parties must correspond to each other. The declarations do not have to be identical. However, they must clearly refer to each other in terms of content.

If the applicant changes the content of the essential terms and conditions of the contract in their reply, the applicant's e-mail cannot be interpreted as an unconditional acceptance of the original contract offer. According to Section 150 (2) BGB, an acceptance that is linked to extensions, restrictions or other deviations is legally deemed to be a rejection of the original offer and at the same time a new offer to conclude an employment contract. The legal consequence is that a valid employment contract is not concluded until the employer expressly accepts this counter-offer.

If this only becomes apparent later and the applicant takes up work with the employer in the meantime, a so-called de facto employment relationship nevertheless arises between the parties. The employee can terminate the employment at any time by unilateral declaration. They do not have to observe any notice periods or formal requirements in this connection.

In view of these risks, employers should ensure that documents relating to the conclusion of an employment contract are only attached to an e-mail as unalterable PDFs in PDF/A format.

​​​​​​​2.2 Does the company always have to separately check such documents?

There is no obligation to carry out a separate check. However, in addition to using unchangeable PDF formats, it is advisable to check whether the documents attached by the applicant are identical to the original documents. There are simple technical possibilities for doing this, e.g. by calculating a hash value based on the respective PDF document. If a check results in a different hash value to the "original", the employer knows that the document has been edited. Alternatively, a programme for comparing documents (e.g. CompareDocs) can also be used.

​​​​​​​2.3 Does the processing of PDFs constitute a criminal offence? Does this have to be pointed out separately?

The subsequent falsification of an employment reference by the employee, whether by adding or removing information, forging signatures or falsifying the employee's own position or performance in the company, constitutes the criminal offence of forgery of documents pursuant to Section 267 of the German Criminal Code (Strafgesetzbuch, “StGB”).

The introduction of BEG IV does not result in any peculiarities regarding the consequences under criminal law. In particular, there is no need for the employer to specifically inform the employee of the consequences under criminal law.

​​​​​​​2.4 What happens if an employee subsequently edits an issued reference? Is the company liable as soon as the reference has left the company's sphere of influence?

Previously, the employer had to issue the employment reference in writing. According to Section 630 sentence 2 BGB (new version), a reference may be issued in electronic form with the employee's consent. However, if the employer makes a subsequent correction to the reference, the corrected reference must be issued in paper form and backdated in order to avoid disadvantages for the employee concerned.

If the employee subsequently edits a reference issued by the employer, this may also constitute criminal behaviour within the meaning Section 267 StGB (forgery of documents) (see point 2.3). This is because corrections to employment references may fundamentally only be made by the issuer and not by the employee themselves.

The employee bears sole responsibility for the circulation of a subsequently edited employment reference. However, also with regard to electronically issued references, it is advisable to send them in a PDF/A format that cannot be changed in order to make subsequent changes as difficult as possible.

3. Do works agreements on electronic personnel files need to be adapted?

When introducing electronic personnel files in the company, employers are advised to adapt the applicable works agreements.

In particular, special regulations should be agreed on the digitisation of employees' personal data and with regard to access and inspection rights. Access rights should be narrowly defined and only granted to employees in the HR department and a small number of works council members in order ensure adequate protection of employees' personal data. Employees must be granted an individual right to inspect their personnel file.

Finally, data protection and processing regulations should be agreed as part of an adaptation of works agreements, in particular on the type and scope of personal data contained in the electronic personnel file and the applicable deletion periods.

4. Can warning notices also be sent by text message / WhatsApp?

The employer is not obliged to adhere to a specific form when issuing a warning notice. It is therefore generally possible to send a warning notice to the employee concerned by electronic means, for example by text message or WhatsApp.

Nevertheless, employers are advised to definitely issue a warning notice in text form by e-mail. This is because the employer bears the burden of proof with regard to the validity of a dismissal issued by it that the employee concerned has received and taken note of the previously issued warning notice. Sending a warning notice electronically therefore harbours evidentiary risks for the employer. In accordance with Section 2 (1) sentence 2 NachwG, receipt can be ensured by the submission of a confirmation of receipt.

If the employer nevertheless sends a warning notice by text message / WhatsApp, they must ensure that it is provided with a confirmation of receipt function in order to avert evidentiary risks.

Conclusion

Overall, the BEG IV brings a large number of formal simplifications and makes a significant contribution to reducing bureaucratic hurdles in the world of work. The coming years will show which developments and practical approaches become established in companies. However, the new formal simplifications should not be used carelessly. The modified text form also simultaneously poses new challenges for employers: of particular relevance are evidentiary risks in connection with the conclusion of contracts and the possible subsequent amendment of contractual documents. Employers must therefore take appropriate measures to ensure that the transmitted documents are created and transmitted in a legally secure manner and protected against subsequent changes.

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