News on the German Evidence Act – a practical rethink?
Since 1 August 2022, the revised version of the Evidence Act (NachwG) has been in force, transposing the Transparent and Predictable Working Conditions Directive into national law. The August 2022 amendments to the NachwG were heavily criticised due to the strict requirements for written documentation. Employers saw the explicit exclusion of the ability to record essential working conditions and any changes to them in electronic form as a source of a large amount of paperwork and effort. The requirement for written documentation was justified on the basis that it provided protection for employees in the low-wage sector who are often employed without an employment contract or with sparse information about their employment terms.
The NachwG could soon be amended again. This time, the changes would be in favour of employers. In November 2023, the CDU/CSU parliamentary group introduced a draft amendment to the law, which essentially provides the option of electronic employment terms as an alternative to the written form.
Records of essential working conditions: Previous position
In principle, employment relationships can be concluded informally. However, under the provisions of the NachwG, employers are currently obliged to issue a hand-signed notification letter containing the key terms and conditions of employment or any changes to these terms. Instead of being able to sign employment contracts electronically and send them by email, for example, the legislator requires a paper version.
A new hope?
The CDU/CSU parliamentary group's motion from November 2023 provided new impetus in this regard. Their draft bill provides for electronic form to be sufficient in addition to written form. Electronic records of terms would be possible, provided that the contractual conditions are accessible to the employee, can be saved and printed out, and the employer receives proof of transmission or receipt. A breach of these employer obligations under the NachwG would remain subject to a fine, so employees would not be left unprotected if the written form requirement is relaxed.
Employers' associations and companies had already criticised theNachwG for failing to reduce bureaucracy before it came into force in summer 2022. However, their objections were unsuccessful. When asked about the new draft, they have cited the revision of the strict written requirement as being of enormous practical importance.
The draft bill for the NachwG was introduced to the Bundestag two months ago. However, given the current political situation in Germany, it is unclear whether it will be adopted by the governing parties. In any case, the proposed amendments to the NachwG could be of great benefit to the labor market in the short term.
