The digital signature is a blessing in many respects: Just put the signature on it and send it by e-mail. No more crumpled letters in your pocket, which often only find their way into the post office a week later because a stamp was missing or there was no mailbox on the way home.
Digital policy, regulation, artificial intelligence: the briefing on digitization
However, at least for employers, this simplification of processes will soon be a thing of the past: On June 23, the Bundestag passed amendments to the Proof Act in the second and third readings, which will come into force on August 1.
The rush was due to the deadline to implement the EU directive on transparent and predictable working conditions, which was published back in 2019. Employers must now check all their employment contract templates and adapt them accordingly.
They should also prepare an information sheet that they can make available to existing employees upon request. New employees must be provided with information about the termination procedure, vacation, company pension scheme or further training within one month at the latest.
The written form must be maintained, because the information required in the NachwG cannot be communicated in text form. The legislator understands text form to include not only classic letters, but also e-mails without a signature and even SMS messages, machine-generated letters and fax messages.
If the law requires written form, a document must be signed personally by signing your name or by using a notarized hand sign. The provision, which many experts were particularly opposed to at the hearing in the Bundestag, is contained in the new Section 2 (1). Clause 1 NachwG. The electronic form will therefore no longer suffice in the future.
A novelty of the new Evidence Act is that violations are treated as an administrative offense for the first time and can be punished with a fine of up to 2000 euros. So if a company lays down the essential working conditions of employees with a qualified electronic signature instead of in writing, this can lead to a result in a fine.
Theoretically, the formal requirement does not affect the employment contracts themselves, but only the conditions. However, these are usually fulfilled directly in the employment contract. In practice, the new regulation means that all employment contracts can only be concluded in writing – it would be impractical to conclude an employment contract digitally and then hand over the necessary information in writing again.
They must be printed out, signed by both parties and handed over personally or sent by post. Signing with a digital signature, as is now common practice in many companies, will then no longer be sufficient.
Above all, the novella has one effect: backwards. When asked about this, the Federal Ministry of Labor and Social Affairs states that the written form is not yet dispensable when proving the essential contractual conditions.
The proof must be easy to handle for employees who do not currently have a written employment contract, must be conclusive and, if necessary, can be brought into court proceedings without a lawyer.
This is currently not the case when the employer uses the electronic form, so the written form of the proof corresponds to the current legal situation.
Alexander Zumkeller, President of the Federal Association of Labor Lawyers in Companies, sees it differently: “Other countries around us have to implement the same European directive, but do not require an original signature. Are they all lawbreakers?”
The European legislator has expressly called for digital ways of implementation to be found. “It’s a mystery to me why we don’t take this up.” Zumkeller considers the justification of the BMAS to be insufficient. “A facsimile signature is just as tangible as an original one. In terms of digitalization, we are dramatically behind anyway. This step only reinforces the impression.” The implementation of the law will entail unprecedented administrative tasks in the company, without achieving any real benefit for the employees.