As of 1 January 2019, amendments to the Labour Code came into force allowing employee files to be kept in electronic form. This raises the obvious question of whether employment contracts can be in electronic form as well.
Form required for an employment contract
Under Art. 29 § 2 of the Labour Code, an employment contract must be concluded in writing. The Labour Code does not provide for legal requirements as to the written form of a declaration of intent, and neither does it regulate issues related to making a declaration of intent. For this reason, under Art. 300 of the Labour Code, matters not regulated in employment law but which affect the employment relationship are governed by the Civil Code as appropriate, provided that the principles of employment law are not contravened.
Making a declaration of intent
For the written form requirement to be fulfilled with regard to an act in law, it is sufficient to sign the document containing the declaration of intent by hand (Art. 78 § 1 of the Civil Code). A declaration of intent made in electronic form has the same status as a declaration of intent made in writing, while the electronic form requirement for an act in law is fulfilled if a declaration of intent is made in electronic form and bears a qualified electronic signature (Art. 781 § 1 and 2 of the Civil Code).
How to make a declaration of intent in electronic form
A declaration of intent in electronic form is made with respect to another party as of the moment it is placed in a means of electronic communication (Art. 61 § 2 of the Civil Code) in a manner whereby the other party is able to review it.
Essentially, this means a means of electronic communication that is under the control of the addressee, though it does not necessarily have to belong to them. To give an example, this might be e-mail, which is considered a means of electronic communication under the Electronic Services Act of 18 July 2002.
The effect of a qualified electronic signature
A qualified electronic signature has the same effect as a hand-written signature (art. 25(2) of Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC). Considering at the same time strict rules on obtaining a qualified electronic signature, a signature of this kind guarantees protection of an employee’s rights, and also complies with the principle of preservation of the long-term nature of an employment relationship. Therefore, use of a qualified electronic signature does not conflict with the principles of employment law.
The above means that a declaration made in electronic form and bearing a qualified electronic signature has the same status as the written form. It is possible therefore to conclude an employment contract in an electronic form that meets Civil Code requirements. There is also nothing to prevent one party to the contract using the electronic form (an employer that has a qualified electronic signature) and the other the written form (an employee who does not have an electronic signature).
Incidentally, a print-out of an employment contract bearing a qualified electronic signature of an employer is in neither electronic nor written form, but is a medium for information about the employee’s employment conditions. If an employee signs a printed version, this constitutes a declaration of intent by that employee of acceptance of those conditions. The contract can thus be deemed to have been concluded in the requisite form on the basis of the declaration made by the employee.
The obligation to keep an employment contract with an employee in the employee’s personal files still applies.
If personal files are kept in electronic form, then an employment contract on paper needs to be copied digitally (for example it should be scanned) and bear a qualified electronic signature or qualified electronic stamp of the employer, or qualified electronic signature of a person authorised by the employer – as confirmation that it is a true copy of the original, and placed in the electronic personal files.
On the other hand, if personal files continue to be kept on paper and the employment contract is in electronic form, then the contract should be printed and signed by the employer or person authorised by the employer – as confirmation that the printed version is a true copy of the electronic document, and placed in personal files kept on paper.
Katarzyna Żukowska, adwokat, Employment Law Practice, Wardyński & Partners