Wiewiórski Legal | View firm profile
At a time when so many employers have decided to introduce the remote working solution, maintaining the traditional employee documentation has become quite a challenge.
In many cases, Polish law requires that HR documents (e.g. an employment contract, termination of employment contract) should be in written form, and ensuring compliance with that requirement may be significantly more difficult when the direct contact with an employee or job candidate is very limited or even impossible.
However, the use of written form within the meaning of Polish law is possible even in such circumstances. New technologies come to the rescue here, including the option of using the qualified electronic signature, which is tantamount to fulfilling the requirement of the traditional written form. It should be noted, however, that this must a qualified electronic signature, i.e. an electronic signature that has been provided by a certified supplier or that meets the conditions set out in the eIDAS Regulation. The use of other electronic signatures, not complying with the above requirements, is not equivalent to written form within the meaning of Polish law.
Different documents require different approaches
A qualified electronic signature is the most convenient solution in situations where the employer is obliged to submit a unilateral declaration of will in written form (e.g. when terminating the contract of employment with or without notice). In such an event it is sufficient to deliver the employer’s declaration with the qualified electronic signature to the employee by electronic mail, and thus the requirements concerning the form of a legal transaction will be met. In consequence, the employee will not be able to effectively cite formal irregularities as the grounds for appeal to the labour court (on the other hand, such an appeal would be effective if the employer’s declaration was delivered, for instance, by fax or in the form of an ordinary scanned copy). What is a separate issue, however, is the effective delivery of a document terminating the employment contract and the definition of the moment when the employee read it or was able to read it. Each case requires appropriate planning.
The situation is slightly more complicated in the case of entering into contracts of employment. This is because whereas persons representing the employer usually have the qualified electronic signature, the employees are not typically equipped with such a solution. It should be noted that the employee’s acceptance (e.g. via email) of the terms and conditions of the employment contract presented to them by the employer in writing or with the use of the qualified signature will result in the effective conclusion of the employment contract, but the requirements of the Labour Code regarding the conclusion of the contract in written form will not be met (because that form is required with respect to the declarations of both parties).
However, it is worth remembering that only the failure to confirm in writing the employment contract concluded with the employee before allowing the employee to commence work constitutes a misdemeanour against the employee’s rights (while the lack of a written contract signed by both parties does not constitute such a misdemeanour). Therefore, if it is not possible to sign a contract in writing before the employee commences work, it is recommended that at least the employer’s declaration of will should be submitted to the employee in written form or in electronic form (with the qualified electronic signature). Then, as soon as practically possible, the formalities should be complied with and the required documents should be included in the employee’s records.
The above examples illustrate only some of the problems connected with drafting and delivering employee documentation “on a remote basis”. Should you encounter any situations raising doubts, especially in the event of the necessity to terminate a contract of employment with an employee who is not physically present at the workplace, please do not hesitate to contact us.
Magdalena Szeptycka