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Always Topical: Written Form Requirements In Employment Law And Possibilities Of Using Electronic Form – Employee Benefits & Compensation



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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. 

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

POPULAR ARTICLES ON: Employment and HR from Germany



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