Reform of the Evidence Act as of 01.08.2022 with far-reaching changes for employers Written form requirement remains in place

The reason for the criticism is that the changes and new regulations are in many respects unsuitable in practice and lead to a considerable regulatory burden for employers.

Written form requirement remains in place

Although the relevant EU directive stipulates that the essential contractual conditions can also be made available to employees in electronic form, the German legislator has decided to retain the strict written form requirement. Employers are therefore obliged under the German Act on Evidence to provide employees with the essential contractual terms and conditions on a document signed by them in the original, Section 2 (1) sentence 1 NachwG.

Reference to legal action in the event of dismissal

The procedure to be followed by employers and employees when terminating an employment relationship must now also be set out in writing, but at least the written form requirement, the deadlines for terminating the employment relationship and the deadline for bringing an action for unfair dismissal (Section 2 (1) sentence 2 no. 14 NachwG). What exactly is meant by the procedure to be followed when terminating an employment relationship is not clear from the explanatory memorandum and is highly controversial in the literature. § However, Section 2 para. 1 sentence 2 no. 14 of the Evidence Act at least makes it clear that employees must file a complaint with the labor court within three weeks of receiving the written notice of termination, even if they do not provide proper evidence, otherwise the termination will be deemed effective from the outset. However, it is not clear what other legal consequences may result from a breach. For example, the possibility of a retrospective admission of a complaint (Section 5 KSchG) could be considered here.

New inclusion of sanctions

One of the most significant changes is that violations of the Evidence Act now qualify as administrative offenses. According to Section 4 NachwG, a fine of up to EUR 2,000.00 can now be imposed on employers in the event of a breach of the corresponding obligations to provide evidence.

Reference to law or collective agreements

There is a simplification for employers insofar as Section 2 (4) NachwG provides for the possibility of a reference to statutory regulations and/or to specifically applicable collective agreements.

In summary, the amendments to the Proof of Employment Act lead to considerable additional work for employers. In order to avoid possible sanctions, we recommend that all employers adapt their employment contract templates to the new requirements of the Evidence Act. It should also be noted that employees who were already employed before 01.08.2022 can also request corresponding proof. This request is not subject to any formal requirements and can therefore also be made verbally. In this case, employers must provide the employees concerned with an original signed copy of the main contractual terms and conditions with the information specified in Section 2 within seven days.

The team at VOELKER's employment law department will be happy to support you in implementing the new regulations.