The new Evidence Act: far-reaching changes for employers An overview
This law makes numerous changes to the Evidence Act. In many respects, the new regulations are incomprehensible, unsuitable in practice and cause employers a considerable amount of additional work. It is also not surprising that the draft of the law has already received devastating criticism. Nevertheless, it was passed unchanged.
An overview
Written form requirement remains in place
The main idea behind the relevant EU directive is that employees should be informed of their main working conditions in an easily accessible form. The directive explicitly stipulates that the information must be provided and transmitted in paper or electronic form. This opened the door to the digitalization sought by the German government. However, Germany continues to adhere to the written form. The electronic form remains excluded in the new Evidence Act. This means that paper and signatures are still required in order to meet the requirements of the law on the recording of essential working conditions. Incidentally, Germany is the only exception in the EU here, although the coronavirus pandemic has shown us very clearly how necessary digitalization is and how much catching up there is to do in this country. The word "digitalization" appears over 60 times in the coalition agreement, but unfortunately not in the new verification law.
Fines
While the written form will remain, the new Evidence Act means that breaches of certain regulations (in particular breaches of the written form requirement) will be considered administrative offenses for the first time. These can be punished with a fine of up to EUR 2,000.00 per violation.
Procedure for termination
In future, the procedure to be followed by the employer and employee when terminating the employment relationship must be set out in writing, at least the written form requirement and the deadlines for terminating the employment relationship as well as the deadline for filing an action for unfair dismissal. It is (fortunately) clear that Section 7 of the Dismissal Protection Act also applies if the deadline for filing an action for protection against dismissal is not properly met. It is therefore still possible for actions to be filed too late and to be dismissed for this reason alone. At least there is a small ray of hope.
Time limits
The deadlines for employers applicable from August 1, 2022 are particularly regrettable and impractical. Previously, employers had one month to put the essential working conditions in writing for new contracts. Although the directive would have allowed a longer deadline, the legislator deliberately opted for a shorter one. In addition, different deadlines apply:
The information in accordance with Section 2 (1) sentences 1, 7 and 8 must be provided on the first working day at the latest
The information pursuant to Section 2 (1) sentences 2-6, 9 and 10 must be provided no later than the 7th calendar day after the agreed start date
The other information according to sentence 2 must be provided no later than one month after the agreed start date
In order to avoid this madness of deadlines, users will ultimately have no choice but to take the safest route and hand over all working conditions on the first day of the employment relationship - not forgetting: in writing.
The following applies to existing employment relationships, i.e. old contracts: At the employee's request, employers must in future hand over the minutes containing the information pursuant to Section 2 (1) sentence 2 nos. 1-10 on the seventh day after receipt of the request. The question may well be asked here as to whether politicians are still thinking about the realities of the economy at all. Let's take the following example: In a company with 1,000 employees, everyone requests written proof on the same day in a worst-case scenario. Assuming a 5-day week, 200 certificates a day would have to be issued in order to meet the new deadline of seven calendar days. Even if the German government's completely unrealistic assumption of only 3 minutes per certificate is applied, this is simply impossible in an 8-hour day, as an hour only lasts 60 minutes. This does not even take into account the economic burden.
Collective agreements
It is still possible to prove the essential working conditions by referring to the collective agreements applicable to the employment relationship, such as collective agreements. However, this is only possible if the relevant collective agreement also contains actual provisions on the essential terms and conditions of employment. Employers must therefore now examine the collective agreements in detail or play it safe and include the essential terms and conditions of employment in the employment contract instead of referring to them. Incidentally, employers who already have employees within the scope of a collective agreement or similar are not exempt from the new requirement to hand over the written record with the information in accordance with Section 2 (1) sentence 2 no. 1-10 on the seventh day after receipt of the request.
Summary and outlook
The new Evidence Act falls far short of expectations and will demand a lot from employers. If you read the text of the law with the practical processes in the company in mind, it quickly becomes clear that the implementation will require a considerable amount of additional work and in some cases simply cannot be implemented. The law completely misses the mark. Nevertheless, as an employer you will have to meet the requirements in order to avoid sanctions. We assume that many of the unresolved issues relating to this law will have to be clarified by case law in the coming years. Until then, the wording of the law must be implemented in practice in the best possible way.
Our recommendation
Check your employment contracts and adapt them to the new requirements. Prepare a sample letter so that you can react as quickly as possible in the event of a request for proof for old contracts. There is still some time until 01.08. Use this time and prepare yourself. We will be happy to support you.