– When there is no obligation to use the written form – and no fine of up to EUR 2,000 looms –

“Our head is round so that thinking can change direction” (Francis Picabia)

Since 1 August 2022, changes brought about by the so-called Nachweisgesetz (German Act on Proof of Conditions Governing an Employment Relationship) have taken effect, based on EU Directive 2019/1152. They concern the information provided to the employee about working conditions, which now also includes occupational pension provision (bAV – betriebliche Altersversorgung). The law in force until then did not exclude the digital form. Ever since this reform, it is not only occupational pension service providers who have criticised the assumption that, even today, the law requires the written form – i.e. a document signed by the employer. This is so even though the EU would also have permitted a digital text form, which indeed remains permissible in Germany even for the actual employment contract.

Widespread misinterpretation in the business press

If, however, the parties applying the rules (employer and employee) are convinced that the digital text form instead of the written form – i.e. text files rather than paper – benefits the employee, they may still use it and dispense with the paper form. Many employees will indeed prefer the digital form, especially if they can access it everywhere and at any time, perhaps even in searchable and cross-linked form. And also because, as Reinhard Mey sang, he “always loses papers”. For, as section 6 NachweisG states, the written form may be departed from under this condition:

Mandatory nature: The provisions of this Act may not be departed from to the detriment of the employee (section 6 NachweisG).

What is presumably meant is the individual, not everyone; and the individual is free to state whether the text form is preferable to them. It remains a matter for the employer to decide whether the digital text form (which can be designed to be even more user-friendly, including with a mandatory download or permanent portal access) can, on objective grounds, be shown not to disadvantage all employees, or categories of employees. Anyone would have a problem with this only if they were convinced that the text form – or a user-unfriendly version currently available to them – works to the employee’s disadvantage compared with the written form. Any employer who therefore feels obliged to use the written form thereby effectively admits this to their own detriment – by seeing themselves bound to the patron saint “St Bureaucratius”. Even if they merely harboured doubts as to whether the digital form is advantageous for the employee.

Disadvantage through the digital text form?

Anyone who regards digitalisation by means of the paperless text form as disadvantageous to those affected must ask themselves whether such doubts about the expediency of digitalisation do not, in fact, call digitalisation as a whole very much into question.

Put differently: the text form instead of the written form is not prohibited, unless it works out specifically to the disadvantage of the employee. And to the employer who grumbles, one might say: “Is that actually the case with you? And why, then, would you prefer the text form if you believe it to be disadvantageous for the employee?”.

No one intends to make life harder for the employee. If the paperless form is better for the employee, it may be used.

If someone complains that they do not know whether a court will later see it the same way, this is absurd. For they likewise do not know this when choosing the written form with regard to the Act’s other requirements, nor under any other statute, until a supreme court tells them so. The only thing left for them to do, then, would be to sit down and stare at the ceiling, waiting until someone notices and looks after them. Any employer who believed they were no longer permitted to use the digital text form – previously preferred precisely because it was advantageous – would put themselves in a logically untenable position. All the more so if they cannot even see any way of designing digitalisation in a sufficiently employee-friendly manner.

The legally permissible avoidance of mountains of paper, and the facilitation of the digital form, is regularly welcomed with gratitude by the parties to the employment contract and the occupational pension agreements as a relief.

No one intends to build a wall here! The German legislator permits it; it merely wants to ensure that, in the end, digitalisation practice does not turn out to be even more disadvantageous than the paper form. And with a good implementation standard for digitalisation, that ought to be easily achievable.

by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm

with the kind permission of

www.experten.de (published in ExpertenReport 12-2022, pages 28 and 29)