The electronic form may be introduced as rule in the German Civil Code. This change would affect the form of termination letters for employment relationships.
According to the current legal situation, termination letters for employment relationships require the written form (Sections 623, 126 German Civil Code “BGB”), whereby the electronic form is expressly excluded (Section 623 BGB). A "hard copy" version signed in wet ink is therefore mandatory. An electronically created termination letter, which is probably the rule, must therefore be printed out, signed by the employer in person by a person authorised to give notice and handed over in person or delivered by post or courier. Such a procedure is no longer state of the art in 2023.
This requirement of the written form, often seen as a hindrance, is or has become the exception rather than the rule in comparison to other jurisdictions and is regularly met with irritation, especially in internationally operating companies. Decision-makers are often not based in Germany and it is necessary to send documents around the globe with great effort. Such a procedure is generally not cost or time efficient. Sending individual documents is also not sustainable.
Originally, the purpose of the written form was to protect the employee. By excluding the electronic form, the employee should be in a position to assure that the employer is the issuer of the letter. In addition, the authenticity of the letter is also regularly more reliable in written form, at least at present. The risk of abuse in electronic form is still considered to be higher than in written form, although there are now secure alternatives using qualified electronic signatures.
The termination of an employment relationship, like its establishment, concerns a particularly sensitive area of the person concerned. For this reason, the written form is mandatory and electronic form is excluded.
The concerns regarding the protective function are well-founded. While one part of society has long been living and working in a completely digitalised daily routine, the other part is still largely analogue. Thus, what might be a hindrance for some may be surprising to others. This is by no means just a question of age or the interests of the people concerned. Rather, it shows in which living spaces and sectors digitalisation has been overslept.
According to the proposed amendments in the key issues paper by the Federal Minister of Justice, Dr Marco Buschmann, a trend is already emerging:
In order to ensure a balance between the interests of employee protection and the ease of correspondence, a middle course could be taken: According to the current plans of the Federal Minister of Justice, the written form would remain required in principle for the termination of the employment relationship, but it could possibly no longer be a mandatory effectiveness requirement for the service of the termination letter.
In concrete terms, this means that in favour of simplifying correspondence, the key issues paper states that the effectiveness of the notice of termination should no longer depend on the delivery of a written document. A digital copy of the notice of termination sent by email or messenger could therefore be sufficient in principle. However, the employee should have the right to demand the original letter. In this way, the employee could check the original letter themselves or have it checked. The advantages of the written form would therefore essentially be preserved in favour of individual protection.
However, the key issues paper also contains a familiar addition: The special features of employment law are to be taken into account. This means that implementation in the area of employment law may well be structured differently.
The main changes will be found directly in the general formal requirements of Sections 126 et seq. BGB. Section 126a BGB currently makes it clear that "the legally prescribed written form can be replaced by electronic form". Whereby electronic form means qualified electronic form. The written form of Section 126 BGB is therefore the statutory rule. It is exactly this rule/exception relationship that shall be changed in future. This change would then also have to be taken into account in Section 623 BGB.
According to the key issues paper, the Verification Act (“NachwG”) is also to be amended. Although this does not directly affect notices of termination of employment relationships, it makes clear that the form of legal agreements under employment law will undergo a significant change overall. The proposed amendments are groundbreaking in this respect: in future, it might be possible to conclude employment contracts in electronic written form – fines would no longer be imposed if contracts were concluded electronically. However, the aim is to ensure that employees are also familiar with the handling of digital documents.
The key issues paper by Federal Minister of Justice Dr Marco Buschmann is giving rise to hope. It has only been a little more than a year and a half since the NachwG was reformed and the (handwritten) written form was thus pushed even more strongly in employment law legal transactions.
The massive criticism from practitioners now also seems to be reflected in the process of reducing bureaucracy. The Federal Government's plans allow for a long-needed digitalisation of employment law correspondence and yet leave enough room for the protection of the addressee and – where necessary – also for the traditional written form.
Mar 01 2024