On 1 October last year, an amendment to the Labour Code came into force, which brought many significant changes to the rules of employment relations. You can find a brief summary of the amended areas, such as the extension of the information obligation towards employees or the new rights of caring employees, in our two-part series of articles here and here.
Beyond the mandatory transposition of two EU directives, the regulation of telework was also amended and other elements of the digitisation of labour law were introduced, especially in response to the requirements of current practice.
The area of digitalization is the topic of today’s fourth article in our eight-part series, in which we focus on the individual amended areas in detail and thus follow up on our last article on the changes in the area of agreements on work performed outside the employment relationship (you can read the article here).
Regulation of delivery before the amendment
Electronic delivery of employment contracts, termination notices and other key documents was theoretically enshrined in the Labour Code before its amendment. However, the practical use of this method of delivery was significantly limited. According to the wording in force until 30 September 2023, an employer who wanted to electronically deliver to an employee documents referred to in Article 334(1) of the Labour Code (so-called important employment documents) was required to sign such documents with a recognised electronic signature. However, such delivery was not considered effective if the document was returned as undeliverable or if the employee did not acknowledge receipt of the document by a data message with a recognised electronic signature within 3 days of sending it.
However, the situation changes significantly with the amendment, as it significantly simplifies and modernises the process of electronic delivery. In particular, it narrows down the range of important employment law documents that must be delivered to employees in their own hands and further changes the rules for choosing the method of delivery.
Narrowing the scope of important employment documents
The scope of the list of so-called important labour law documents, i.e. documents delivered under a stricter regime (according to Section 334 of the Labour Code “in own hands”), has been narrowed down compared to the previous wording – in the amendment to the Labour Code these are referred to as “documents” and are as follows:
- unilateral documents relating to the termination of the employment relationship/legal relationships based on agreements on work performed outside the employment relationship (e.g. notice of termination, immediate termination, termination during the probationary period or so-called de facto acts such as a letter of reproach (according to case law)[1] or notices within the meaning of Section 52 (f) or (g) of the Labour Code);
- removal from or resignation from a senior staff position; and
- payroll or salary schedule.
Methods of delivery
The amendment abandons the current hierarchical method of delivery, thus allowing the employer to choose the way in which the employment documentation will be delivered to the employee. As a result, electronic delivery is placed on an equal footing with delivery by personal delivery, with the employer being free to choose between these methods. The exception is delivery by postal delivery, which the employer may resort to only if delivery at the employer’s place of work is not possible.
Conditions for electronic delivery
If the employer decides to deliver the document to the employee via an electronic communications network or delivery, usually by e-mail, the following conditions must be met:
- the document must be signed with a recognised electronic signature[2] (however, if the document is delivered by an employee, an electronic signature is not required);
- the employer has informed the employee in writing of the conditions for the delivery of documents via an electronic communications network or delivery, including the statutory time limit for deemed delivery;
- the employee has consented to this method of delivery in a separate written statement (i.e. not as part of the employment contract), in which he or she has also provided an electronic address for delivery that is not available to the employer (for example, a private email address); and
- the employee has not yet withdrawn such consent in writing.
In relation to the delivery process, a fiction of delivery of 15 days from the date of delivery of the document is introduced, after which the message is deemed to have been duly served. However, if the delivery of the message is acknowledged by the employee or if the sent message is returned as undeliverable, the fiction of delivery shall not apply.
Delivery by data box
Prior consent of the employee is now not required only in the case of delivery to its data box. The only obstacle in this respect may be if the employee makes his or her data box unavailable for delivery of documents from the data box of a natural person, a natural person doing business or a legal entity pursuant to Section 18a of the Act on Electronic Acts and Authorised Conversion of Documents.
In the case of delivery to a data box, the fiction of delivery shall apply if the message is not opened within 10 days of its delivery. A similar delivery regime applies in the case of delivery of documents by the employee on the employer.
Changes in electronic delivery of documents under Section 21 of the Labour Code and other documents
Documents, or documents according to which the employee and the employer act in agreement to create, amend or terminate an employment contract, a fixed-term contract or a fixed-term contract – i.e. documents referred to in Section 21(1) of the Labour Code – have much more relaxed rules for electronic delivery.
If such a document is concluded by means of an electronic communications network or delivery, the employer shall send a copy of it to the employee’s electronic address which is not at the employer’s disposal and which the employee has communicated in writing to the employer for that purpose. This is often the employee’s private e-mail address, but the Explanatory Memorandum also mentions the possibility of using the employee’s cloud storage or an electronic address within a communication application (e.g. Whatsapp).
There are no special requirements for signing these documents, so it is possible to conclude an employment contract using a standard electronic signature[3], but a scan of a hand-signed document is sufficient.
Other documents, i.e. documents not referred to in Section 21(1) or Section 334 of the Labour Code, are then delivered in the general regime under the Civil Code (a regime based on the theory of delivery, where the legal act is effective against the absent person from the moment when the expression of will reaches him; if the other party knowingly thwarts delivery, it is deemed to have been duly effected). For example, internal regulations (directives), information for employees, and now also a record of a breach of the temporarily unfit insured person’s regime can be delivered in this way.
Various agreements with employees, such as telework agreements, as well as agreements on deductions from wages, agreements on liability for deficits or loss of entrusted items and qualification agreements, can also be delivered electronically.
How to do it in practice?
If an employer decides to use electronic delivery of employment law documents at its workplace, it needs to update its existing employment law documentation appropriately. This includes, in particular, the preparation of a separate written declaration by the employee consenting to electronic delivery and providing the employee’s private email address for this purpose. It is recommended that the declaration be accompanied, where appropriate, by a model for withdrawing such consent, which will greatly facilitate internal processes.
At the same time, the employer’s information obligation regarding the use of electronic delivery, including its conditions, cannot be overlooked, which can be fulfilled by the employer through a separate information document, or this information can be added to a suitable, already existing internal regulation.
In connection with the digitisation of the labour law agenda, it is also necessary to ensure that electronic documents are thoroughly archived, which will certainly be more transparent for all compared to the existing paper form, and in particular will guarantee a higher degree of security. Archiving is also related to the validity period of electronic documents, which employers must actively take care of, i.e. keep the electronic signature certificate valid or extend it by adding an electronic time stamp.
Conclusion
Digitalization in the field of labour relations represents a significant step forward, as it introduces much simpler and, above all, more applicable rules that are more relevant to the current possibilities and needs of employees and employers.
In particular, employers finally have a free hand in choosing the method of delivery of documents (with the exception of the aforementioned delivery by postal delivery), which not only allows for a much more flexible response to specific situations, but also significantly increases the likelihood of success of such delivery.
It can thus be assumed that electronic delivery will become a very popular and in terms of its advantages the main method of delivery of employment law documents within a few years. Nevertheless, it must be borne in mind that, in the event of a dispute, it will be up to the employer to prove that the document was actually delivered to the employee.
Should you have any questions about the amendment to the Labour Code or need assistance with updating your existing employment documentation, please do not hesitate to contact us at any time.
[1] See the Supreme Court judgment of 4 September 2013, Case No. 21 Cdo 3693/2012
[2] Recognised electronic signature means a guaranteed electronic signature based on a qualified certificate for electronic signature or a qualified electronic signature pursuant to Section 6(2) of Act No. 297/2016 Coll., on trust delivery for electronic transactions.
[3] For example, Docusign, DigiSign or Signi.
Mgr. Jakub Málek, managing partner – malek@plegal.cz
Mgr. Kateřina Lansdorfová, junior lawyer – lansdorfova@plegal.cz
Mgr. Radim Šulc, junior lawyer – sulc@plegal.cz
Rachel Kouklíková, legal assistant – kouklikova@plegal.cz
18. 1. 2024