Anforderungen an die qualifizierte elektronische Signatur als Ersatz für die Schriftform
The employee concerned was already employed by the legal predecessor of the employer from August 15, 2018 until October 31, 2019 on the basis of a fixed-term employment contract. The employment contract was initially extended between the parties - again without justifying grounds - until October 31, 2020.
Under September 29, 2020, the contracting parties then electronically signed (using the tool "e-sign") an employment contract, according to which the employment relationship was to exist from November 1, 2020 until the discontinuation of a material reason. That this signature tool had received the required certification for the recognition of a qualified electronic signature had not been included in the employer's statements.
The employee concerned filed a so-called fixed-term control action with the Berlin Labor Court with the objective of claiming that the employment relationship (i) did not end on October 31, 2020 and (ii) will not end on November 30, 2021 due to the agreed fixed term.
The Berlin Labor Court upheld the plaintiff employee's action for a fixed term in its entirety. The validity of the fixed term as of October 31, 2020 failed due to the fact that there was no justifying reason for this fixed term and the maximum duration of two years for a fixed term contract without a justifying reason (according to the extension agreement) was exceeded. The fixed-term agreement of September 29, 2020 was invalid due to the lack of compliance with the written form pursuant to Section 14 (4) of the Act on Part-Time Work and Fixed-Term Employment Contracts (TzBfG). The written form required under Section 14 (4) TzBfG can be replaced by electronic form. However, pursuant to § 126a of the German Civil Code (BGB), electronic form requires the use of a qualified electronic signature, which neither the employer nor the employee had used. Therefore, since the fixed term was not effectively agreed, the employment relationship is deemed to be concluded for an indefinite period, i.e. for an indefinite period, pursuant to Section 16 (1) TzBfG.
In which cases is special caution required?
Even though we recommend that an employment contract always be concluded in writing for reasons of legal certainty, the employment contract does not generally require the (strict statutory) written form of Section 126 (2) of the German Civil Code (personal signature of both parties on the same contract document) in order to be valid. Exceptions to this may result from a company agreement or a collective bargaining agreement.
In the following cases, however, the employment contract must comply with the written form requirement of Section 126 (2) BGB:
As here - in the case of a fixed-term employment contract, Section 14 (4) TzBfG;
If a post-contractual non-competition clause (Section 74 (1) HGB) is agreed in the employment contract;
If age limits are agreed in the employment contract.
In these cases, the written form can be replaced by electronic form in accordance with Section 126a of the German Civil Code. This requires the issuer of the declaration to add his name to it and to provide the electronic document with a qualified electronic signature (qeS). In the case of a (employment) contract, both parties must electronically sign an identical document in this way.
The electronic form therefore requires the use of a qeS. The requirements for the qeS and the distinction between simple and advanced electronic signatures are set out in detail in Regulation (EU) No. 910/2014 of July 23, 2014 (eIDAS Regulation). Accordingly, the qeS requires that it is
created by a qualified electronic signature creation device,
which is based on a valid certificate of a qualified trust service provider (in Germany: the Federal Network Agency) for electronic signatures,
is uniquely assigned to the signatory
enables the signatory to be identified without any doubt
is generated by the signer only by means that he can keep under his sole control, and
is designed in such a way that any subsequent modification of the data can be detected.
Conclusion and tips for practice
1. The use of a qeS is still possible and is particularly recommended if the employer and the employee to be hired are far away from each other. However, it is important that you ensure in particular that the signature tool you use has the necessary certification from the Federal Network Agency.
2. In case of doubt, you should always conclude a fixed-term employment contract in writing before the employee starts work.
3. In the case of a termination or a cancellation agreement, the electronic form is excluded. This means that these documents must be signed personally ("wet signature") and in original by the person(s) authorized to terminate the contract or by the parties concluding the contract.