The amendment to the Labour Code brought with it a long-awaited update of the provisions on the delivery of documents between the employee and the employer. This novelty was eagerly awaited especially by employers with a large number of employees, who already relied on electronic communication to a large extent before the amendment – and were in legal uncertainty.

In this article, we will introduce you to new developments in the area of delivery by the employer to the employee.

Letters to be delivered to employees under the special scheme

The amendment significantly simplifies (and thus finally enables in practice) the regime of electronic delivery of some of the most important documents where the employer acts unilaterally towards the employee. It is the following documents:

• wage or salary statement;
• notice;
• immediate termination of employment;
• termination of employment during the probationary period;
• termination of an employment relationship based on a work performance agreement or a work activity agreement (except for termination of an employment relationship by agreement);
• removal from or resignation from the post of senior staff member

(hereinafter referred to as the “Documents”).

In particular, it will no longer be necessary for an employee to acknowledge delivery by a data message bearing his/her recognised electronic signature for electronic delivery of the Documents. On the other hand, the amendment introduces some new formalities in order to maintain a high level of protection for the employee. 

Electronic delivery of Documents is now subject to the employee’s informed consent given prior to delivery. It is the employer’s duty to inform the employee about the requirements of electronic delivery.

The instruction should include in particular:

• a list of Documents that may be delivered electronically;
• information on the employee’s right to withdraw consent to electronic delivery in writing at any time;
• information on when the Document is deemed to have been delivered, including the so-called delivery by fiction if the employee fails to acknowledge delivery within 15 days from the date of delivery of the Document.

The employee’s consent must be given in the form of a separate written statement. In particular, this consent cannot be part of the employment contract.

Consent is always given for delivery to a specific electronic address. This must be a private address, i.e. not a work email.

The Employer is also obliged to affix a recognised electronic signature to the Document, i.e. a signature based on a qualified certificate or a qualified signature.

Conditions for delivery of Documents to the employee’s data box

The strict regime described above requiring the express written consent of the employee does not apply in the case of delivery of Documents by data mailbox. 

If the employee has a data box and has not made it inaccessible, the employer may deliver the Documents to the employee without needing the employee’s additional consent. In addition, a document delivered via a data box does not have to be supported by a recognised electronic signature.

The statutory regulation of the date of delivery is also more favourable for employers: The document is delivered on the date the employee logs into the data box or 10 days from the date of delivery to the employee’s data box.

Conditions for electronic delivery of other communications

The principle that everyone has the right to choose any form of legal action, unless otherwise provided by law or by agreement between the parties, shall apply to electronic communication and delivery of documents other than the Documents. The Labour Code requires written form for all agreements related to the employment relationship (e.g. agreements on deductions from wages, liability for entrusted values, telework...) and also for certain unilateral actions of the employer (e.g. scheduling of working hours, justification for not granting an employee’s request for shorter working hours or other adjustment of working hours under Section 241 of the Labour Code...)

According to the Civil Code, the written form is preserved even when electronic means are used, provided that they enable the content of the communication to be captured and the person acting to be identified.  For more information on the electronic making of certain contracts and the formalities related to their delivery, see the previous article on the amendment to the Labour Code here. 

Communications, for which no written form is required (in particular routine work instructions), may be delivered by any means.

Conclusion

Although the amendment has brought welcome clarification to the issue of electronic delivery, it has also brought with it some new formalities. The requirements of the amended Labour Code will mean an additional administrative burden both for those employers, who are still considering the transition to electronic delivery, and for those, who already have an electronic communication system in place.

The employment law team of GT Legal will be happy to assist you with the implementation of electronic communication in your workplace.