The new Documentation Act, which implements an EU directive through German legislation, has been in force since 1 August 2022. It regulates the details of an employment contract more strictly than before, which means significantly more work for employers. Among other things, employment contracts must be provided in hard copy, i.e. on paper. Yet, particularly over the past two years, many law firms have begun to, to digitise their processes. Do we have to go and buy more toner and paper now? Or are there ways to at least sign these documents, which are necessarily in analogue form, digitally?
Paul offers a brief insight into the reality at hsp. Since 2019, the Hamburg-based company has been digitising more and more of its work processes. The aim is to eventually do away with paper documents altogether. Employment contracts are also affected. Now, however, a far-reaching law on the retention of evidence is forcing a step backwards. Are there at least ways to replicate the signing process digitally? Disclaimer: Neither the live broadcast „hsp live at 11“ nor this blog post constitutes legal advice. Personal assessments and opinions have been and are being expressed. Anyone wishing to discuss legal matters should seek professional legal advice.
Host Paul Liese welcomes two familiar faces from „hsp live at 11“ to the live stream. One of them is a digital signage expert Hendrik Siemes from d.velop, who has already given a presentation on digital signatures. Hendrik has been working intensively on this topic for three years and is responsible, amongst other things, for the sales of the d.velop sign software. The second member of the team is Sebastian Mertens, an automation specialist. In the past, he has introduced the livestream audience to topics such as low-code/no-code. This is also his professional field, both as a developer and as a consultant for businesses.
Is the 2022 Evidence Act not practicable in all respects?
How do guests view the requirements of the new Documentation Act? Hendrik assumes that the employment contract may continue to be issued and signed digitally in its entirety. However, in addition, at least a one- to two-page summary containing fifteen specified points must be provided in paper form and issued with a signature. Two documents are therefore required if a company wishes to carry out the process digitally, at least in part. The fifteen points mentioned are the key terms of the employment contract, including:
- Name and address of both contracting parties
- Duration of the employment relationship
- Fixed term or duration of the employment contract
The question most companies must therefore ask themselves is: Do I go to the trouble of drawing up two documents for each employment relationship, or do I do without them? If they choose not to, everything is covered by a single employment contract, which is issued and signed entirely in paper form. Sebastian notes that, due to the wording of the Employment Evidence Act, many companies handle their employment contracts entirely in paper form. Out of uncertainty, documents running to as many as 97 pages are sometimes printed and sent out, even though, in theory, 95 pages should be recorded purely digitally. Hendrik has spoken to many law firms, and they recommend two options.
As a first step, the employment contract, together with all its annexes, can still be signed digitally. There is no requirement for it to be in writing. Although legal experts recommend the use of qualified electronic signatures, there is as yet no legal obligation to do so. In the second step, the two-page document containing the fifteen points is sent by post as the first option. The recipient confirms receipt by other means, for example by text message or email. The confirmation is filed in the DMS. Second option: The two-page document is handed over, for example, as part of a welcome pack on the first day of work. In this case, it is important that HR or the managing director completes a confirmation document stating when and in what form the document was handed over to the new employee.
Should processes be documented for safety’s sake?
What does this mean for employers? Does a company have to keep at least the two-page document and the acknowledgement of receipt in paper form in a filing cabinet? From a legal point of view, Hendrik can answer this question quite clearly with a „yes“. However, he does not consider this particularly practical. In his view, it would make more sense for the employment contract, the two-page document and the confirmation to be stored in digital form in the digital personnel file. The main problem is that there is as yet no established best practice. How certain procedures will be viewed in court remains to be seen.
Should a company apply the Document the process? Or is it enough simply to show the file cabinet to the inspector? Sebastian says that these questions won’t need answering until the first cases reach the employment tribunals. Hendrik Paul agrees, however, when it comes to demonstrating to the authorities that the company has followed a proper procedure. Precisely because the legislation is unclear, it’s not a bad idea to provide additional protection by keeping a record.
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