The Fourth Bureaucracy Relief Act also amended the Evidence Act. Employers no longer need to inform employees of the essential contractual terms of the employment relationship in writing, but only in text form. This means that digital employment contracts are now also possible. This also has an impact on personnel leasing.
Under German law, no special form is required for the conclusion of an employment contract (Section 611a (1) BGB). An employment contract can therefore be concluded in any conceivable form. Even verbal employment contracts would be effective. However, this leads to problems of proof: In the case of an oral employment contract, the essential terms of the contract cannot be derived from a written employment contract. In the event of a dispute, it is difficult for both parties to prove which contractual terms have actually been agreed upon.
For this reason, the German Act on Evidence (NachwG) obliges the employer to prepare evidence of material contractual conditions and to provide this to the employee. The legally mandatory content of this evidence is set out in Section 2 (1) sentence 7 NachwG. The obligation to provide evidence includes information on the place of work, working hours, annual leave, and agreed remuneration. Some of the information must be provided on the first day of employment. A period of seven days or one month must be observed for the remaining information.
Until the amendment by the Fourth Bureaucracy Relief Act on January 1, 2025, the evidence had to be submitted to the employee in writing. According to Section 126 (1) BGB, written form requires the issuer to sign a document by hand. This excludes a merely digital signature as well as the transmission of the evidence by email. This would only satisfy the text form pursuant to Section 126b BGB, but not the written form.
In the past, it was also possible to conclude an employment contract by email, for example. In this case, the employee receives a file of the employment contract with the essential contractual terms. However, these were not provided to the employee in written form, but only in text form. This did not meet the requirements of the German Act on Evidence. Consequently, if the employer does not provide evidence or does not provide it correctly, not completely, or not in the prescribed manner or in good time, this may constitute an administrative offense (Section 4 (1) NachwG). This administrative offense can be punished with a fine of up to EUR 2,000 (Section 4 (2) NachwG).
In the past, it was therefore not advisable to conclude an employment contract digitally: The advantage of digitally signing and quickly transmitting documents was eliminated by the provisions of the Evidence Act. This is because in all cases of a "digital contract conclusion," the employer still had to provide written proof of the essential terms of the contract.
As a result of the Fourth Bureaucracy Relief Act, this proof can now also be provided in text form—for example, by email. The prerequisite is that the document is accessible to the employee, can be saved and printed out, and the employer requests the employee to provide proof of receipt with the transmission (Section 2 (1) sentence 2 NachwG). Accordingly, employment contracts can now also be transmitted as a file. However, the contracting parties should ensure that the mutual consent to the contractual document can still be proven. This is possible, for example, by digital signatures or by express acceptance of the contract by email.
In special cases, however, the conclusion of an employment contract in text form is still excluded in the future. If a post-contractual non-competition clause is to be agreed with the employee, this must be agreed in writing (Section 90a (1) sentence 1 HGB). Fixed-term employment contracts must also be concluded in writing (Section 14 (4) TzBfG). In the event of a breach, the non-competition clause or the fixed term is invalid. Finally, the termination of the employment relationship must also be in writing: terminations or termination agreements by email are also invalid in the future.
The Fourth Bureaucracy Reduction Act also has an impact on personnel leasing. Previously, contracts between the hirer and the lender of leased personnel also had to be concluded in writing. Since January 1, 2025, text form has also been sufficient for these contracts (Section 12 (1) sentence 1 AÜG). This should similarly lead to simplifications in the area of personnel leasing. According to Section 1 (1) sentence 5 AÜG, the lender and hirer must expressly designate the contract concluded between them as a personnel leasing contract. Before the leasing takes effect, the particular employee must be specified with reference to the contract (Section 1 (1) sentence 6 AÜG). Violations of these regulations can lead to the invalidity of the personnel leasing contract (Section 9 (1) No. 1a AÜG). In these cases, an employment contract is concluded between the hirer and the leased employee (Section 10 (1) sentence 1 AÜG).
This contract previously had to be concluded in writing. This was particularly problematic in cases of short-term employee leasing. A breach of this requirement could constitute an employment contract between the hirer and the leased employee. The new statutory provision of Section 12 (1) sentence 1 AÜG, according to which this contract may in future be concluded in text form, can help to reduce such risks.
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