Digitalisation of HR processes
The digitalisation of HR processes is mainly associated with the elimination of paper documents and the transition to their digital circulation resulting in use of modern methods of communication when performing activities related to the daily operations of the company. The dynamics of the HR processes digitalisation have undoubtedly been influenced by the pandemic, which has shown that even when employees are working fully remotely, the company’s performance is no worse than when the employees came to the office every day. Currently we can work from every part of the world and companies are keen to hire professionals whose place of residence may be hundreds of kilometres away from the headquarters.
Carrying out the digitalisation is primarily dictated by the formal requirements established by legal acts for particular legal transactions to be valid and effective. Digitalisation cannot lead to a situation in which the performance of these acts becomes easier and feasible by means of distance communication, but at the same time makes them invalid or ineffective under the law.
Concluding an employment agreement
Improving the conclusion of the employment contract through the use of electronic communication channels, is possible in two ways – through full digitalisation and partial digitalisation. In the first approach the employer drafts the text of the employment contract, signs it with a qualified electronic signature, then sends the contract to the employee in email correspondence, the employee also signs the contract with a qualified electronic signature and sends it back to the employer. However, employees rarely possess electronic signatures.
Partial digitalisation, on the other hand, takes place when the employer drafts the text of the employment contract and signs it with a qualified electronic signature and then sends the contract to the employee in e-mail correspondence. The employee prints out the contract, signs it in their own handwriting and then sends it by post or courier to the employer.
Non-preservation of the written form does not result in invalidity of the employment contract. The Supreme Court expressed its opinion on this issue in the judgment of 4 November 2009, I PK 150/09: An employment contract may be concluded implicitly. Failure to observe the written form does not render it invalid.
However, it follows directly from Article 29 § 2 of the Labour Code that if an employment contract has not been concluded in writing (or electronically), before the employee is admitted to work, the employer should confirm in writing the arrangements as to the parties and the type of contract and the terms and conditions of work and pay – i.e. in writing or electronically.
For example, if in an employment contract sent by the employer and accepted by the employee through an email exchange (without the use of a qualified electronic signature), the parties have indicated that the commencement of work will be on 1 August 2023, the confirmation should be communicated to the employee at least one day earlier or on 1 August 2023, but before the employee starts work.
The employer may provide the employee with an original hand-signed confirmation (by post or courier) or sign the document with a qualified electronic signature and send it to the employee in that form by e-mail.
The written confirmation of the arrangements as to the nature and terms of the employment contract should be considered only as a document certifying the conclusion of the employment contract and not as an employment contract itself. Its content cannot change the parties’ previous arrangements. If it contains provisions contradicting the previous arrangements, only what was agreed in the employment contract is valid, even if it was agreed in speaking. In order to avoid possible discrepancies between the employee’s and the employer’s versions of the contract, we recommend that the employment contract is nevertheless concluded at least in documentary form.
Information on conditions of employment under Article 29 of the Labour Code
Confirmation of the arrangements as to the parties and the type of contract and the terms and conditions of work and pay are to be distinguished from information on the terms and conditions of employment (Article 29 § 3 of the Labour Code). The Labour Code provides for a paper or electronic version. Version should not be understood as form of the document, which is defined explicitly in the Civil Code. For the document to be in electronic version, it is sufficient to send it to the employee by e-mail (the employee should be able to read the content of the document and print it out) and no qualified electronic signature of the employer or the employee is required here.
In other words, the information can be transmitted electronically rather than in electronic form – i.e. it does not require an electronic signature, but it will be available to the employee with the possibility to print and store it, and the employer will keep evidence of its transmission or receipt by the employee. It is therefore sufficient if the information is sent to the employee, e.g. in an email, and the employee also confirms by email that he or she has read it.
Modification of the terms and conditions of the employment contract as a result of consensual statements of intent
The provisions of the Labour Code (Article 29 § 4 of the Labour Code) require written form for amending the terms of an employment contract, and therefore handwritten signatures or qualified electronic signatures.
In a situation where the change to the terms and conditions of the employment contract concerns an increase in the employee’s remuneration and is exclusively beneficial to the employee (and does not raise any doubts, i.e. does not contain additional reservations), declarations of will of the parties made in documentary form are sufficient – these may be agreements made in e-mail correspondence as well as the conclusion of an agreement using a tool like DocuSign.
In view of the principle of employee preference, it is also permissible to amend the terms and conditions of employment by increasing the remuneration through a unilateral declaration of intent by the employer expressed in electronic form with a qualified electronic signature.
Any other change in the terms and conditions of employment (e.g. change of position, scope of duties) to which the employee and the employer agree must be in writing. The pattern of digitalisation possibilities will therefore be the same as for the conclusion of an employment contract.
Termination of employment agreement
A notice of termination of an employment contract (also the so-called disciplinary dismissal) is a statement of intent of the employer, which should be delivered to the employee and with which the employee should have the opportunity to become acquainted. The Labour Code provides for a written form in this case.
In the process of digitisation, the notice of termination can only be signed by a person with a valid qualified electronic signature confirmed by a secure certificate. The same signature must also be used for the additional information concerning the possible release from work, the granting of leave, the obligation to return property, etc. (if it is a separate document).