A scanned signature cannot fulfill the written form requirement
The Berlin-Brandenburg Regional Labor Court recently ruled that even very short employment contracts must be in writing to be valid, and that a scanned signature in particular is not sufficient.
For a fixed-term employment contract to be valid, it must always be in writing (Section 14 (4) TzBfG). This means that the employment contract must be signed by both parties in the original (in wet ink) or must be provided with a qualified electronic signature by both parties before the employment relationship begins and the activity actually commences. If the written form is not complied with before the commencement of the activity, the employment relationship shall be deemed to be for an indefinite period if this is asserted in court within three weeks of the agreed end of the employment relationship at the latest. The Berlin-Brandenburg Regional Labor Court has now ruled that there is also no exception to this if only a very short employment relationship existing for a few days is agreed and that fixed-term contract have already been done by the parties without written form several times in the past.
In the facts underlying the decision, the employee worked for a staff leasing company with which the employee concluded more than 20 short-term employment contracts over several years for orders from user companies. In each case, the employee received an employment contract limited to these days with a scanned signature of the managing director of the staff leasing company, which the employee signed and returned by mail to the staff leasing company as employer. In her action, the employee asserts the invalidity of the most recently agreed fixed-term contract for lack of compliance with the written form.
The decision of the Regional Labor Court
The Regional Labor Court decided in this case that
the agreed fixed term is invalid for lack of compliance with the mandatory written form requirement,
the scan of a signature is not sufficient for the existence of the written form, since with the scan neither a handwritten signature nor a qualified electronic signature is present,
a later personal signature of the contract by the staff leasing company does not lead to a validity of the fixed-term contract either, since the personally signed fixed-term agreement of the employee must be available before the beginning of the contract and,
the fact that the employee has accepted this practice of concluding fixed-term contracts in the past does not stand in the way of the action and cannot be seen as a breach of trust on the part of the employee, since any trust on the part of the employer in such a practice which is not in conformity with the law is not worthy of protection.
Thus, according to case law, no exception to the written form requirement is possible even in the case of very short employment relationships. This must also be observed, for example, when concluding contracts for working students or contracts for marginal employment. Without exception, an original signature or a qualified electronic signature is required for an effective fixed-term contract. You can find out which requirements must be met for such a qualified electronic signature in our article "Caution when using electronic signatures to conclude fixed-term employment contracts".
If the legal requirements outlined are complied with, it is possible to conclude a (very short) fixed-term employment contract. To avoid unpleasant surprises after the end of the fixed-term period, please contact us before concluding or extending a fixed-term employment contract.