Despite widespread and massive criticism in the legislative process, the German legislator has retained the written form requirement for proof under Section 2 of the Law on the proof of the essential conditions applicable to an employment relationship (Nachweisgesetz, NachwG) when implementing the EU Working Conditions Directive. How to deal with this written form requirement in particular is currently the subject of much debate. Numerous companies feared that it would lead to additional organisational work and overload human resources departments in the coming days and weeks. At this point, we provide a brief presentation on how companies can efficiently deal with the written form requirement.
First of all, it is important to understand that the amendments to the NachwG do not result in the written form being required for the entire employment contract (unless this is required for other legal reasons, e.g., in the case of fixed-term employment relationships). Only the working conditions set out in the catalogue in Section 2 (1) Sentence 2 NachwG must be communicated in
writing. The impact on existing digitised processes is therefore not at all as serious as is currently often claimed. Essentially, an organisational procedure must be put in place that ensures that the employee receives the proof in writing and signed without involving a considerable amount of time and effort. At this point, we recommend adapting the signature process within the company. Existing signature rules should be revised in order to make it possible for a broad group of persons to sign the proof. These do not have to be just the persons who are usually allowed to sign the
employment contract. The more people who are allowed to sign the proof, the faster the proof can be handed out. In particular, managers who are on site with the respective employees come into consideration. The procedure would then be for the decentralised human resources department to prepare the proof, for it to be signed locally by the department head or similar, and for it to be given to the employee on the first day of employment. This means that the entire procedure can be handled with relatively little effort. If a company fears administrative offence proceedings, it is
advisable to make a short note in the file of the relevant manager about the handing over of the proof as an additional backup. Furthermore, it should be sufficient for evidentiary purposes in
potential proceedings to refer to the (signature) process that has been set up.