An employment contract is basically not subject to any formal requirements insofar as the law does not stipulate a formal requirement. Here, the written form requirement under the German Civil Code, in particular, comes into consideration. This may be replaced by an electronic form insofar as the criteria for the qualified electronic signature (QES) have been satisfied and the law does not expressly exclude its use.
Under the German Part-Time Work and Fixed-Term Contracts Act, fixed-term agreements are subject to a mandatory written form. However, the issue of the effectiveness of those time limits in employment agreements that have been signed electronically is one that is hotly disputed. To-date, there has still not been a court decision on this. It is therefore all the more gratifying that twelve respective actions against fixed-term employment contracts are pending before the Berlin labour court (among others, case reference: 20 Ca 8498/21 and 20 Ca 8500/21) that could provide clarity with regard to this issue.
Recommendation: With a view to the legal effects in the event of the invalidity of such fixed-term agreements, we would recommend that until the courts have finally clarified the issue you should comply with the written form requirement at all times for these agreements.
Proof of essential elements of the contract
If no “written employment contract” has been concluded then, under the Act on Notification of Conditions Governing an Employment Relationship (Nachweisgesetz, NachweisG), the employer is required to hand over written proof of the essential elements of the contract to the employee within one month. However, there is a dispute as to what requirements should be placed on the “written employment contract” mentioned here.
A specific rule that, in this context, excludes an electronic signature on an employment contract is not provided for by law. However, if the electronic form were to become admissible then this would erode the principle of written documentation of employment contracts (whether these are actual employment contracts or the proof thereof) that has been applicable under the NachweisG up to now.
However, it is likely that this uncertain legal situation will soon be a thing of the past. This is because Directive (EU) 2019/1152 on transparent and predictable working conditions is supposed to explicitly allow electronic transmission of the proof of essential elements of the contract subject to compliance with certain criteria that aim to protect the proof. National lawmakers have been given until 31.7.2022 to transpose the Directive.
Please note: It should however be noted that a violation of the NachweisG would merely invert the burden of proof as regards the content of the contract and place the onus on the employer. In this case the contract would be valid without compliance with the form requirement.
Please note: The legally uncertain territory, which is described above, will be reduced, bit by bit, by lawmakers and through case law, although clear legal rules, particularly in the area of fixed-term agreements, would be desirable. Implementing extensive possibilities for the use of electronic signatures into employment law could constitute a milestone for enhancing the efficiency of personnel departments and, thus, of businesses in general. Further developments remain to be seen.