Judgment of the Regional Labour Court of Berlin-Brandenburg of 16 March 2022 in Case No. 23 Sa 1133/21
A scanned signature does not fulfil the written form requirements for a fixed-term agreement. This will be the case even if the employment relationship is only supposed to exist for a few days.
Facts of the case
The employee concluded 25 short-term, temporary employment contracts with the employer, a recruitment agency, over a four-year period. The contracts were always for a term of between one and seven working days, with one of 21 working days. Most recently, the employee worked as a hostess at a trade show. The employment contract was for a fixed term of five working days and had a scanned signature of the managing director at the bottom. After countersigning the contract, the employee sent the original back. This was normal practice for agreements concluded between the parties. The employee brought an action claiming that the fixed term of the last employment contract was ineffective. She argued that the contract was invalid under § 14 (4) of the Act on part-time and fixed-term employment contracts (Teilzeit- und Befristungsgesetz, TzBfG) because it infringed the written form requirement. The employer argued that the written form requirement did not require the employer to provide the employee with an original written declaration of acceptance. It further argued that it is an abuse of law and violates the good faith principle for the employee to bring an action based on the lack of written form after concluding 24 previous contracts in the same manner without mentioning this defect.
The Regional Court (Landesarbeitsgericht, LAG) of Berlin-Brandenburg held in favour of the employee. The fixed term was ineffective due to a failure to comply with the written form requirement. This requirement was set out in § 126 of the German Civil Code (Bürgerliches Gesetzbuch) and was fulfilled when the exhibitor personally signs the agreement. The written form requirement can also generally be satisfied by electronic form. In this case, it needs to be an electronic document with a qualified electronic signature. A scanned signature does not fulfil the written form requirement. The managing director did not sign the agreement himself, nor did he sign it using a qualified electronic signature. Where a signature is mechanically reproduced, such as a scan, the document has not been signed by hand. A scanned signature is also insufficient for the qualified electronic signature requirements. Subsequently signing the agreement will not make the fixed term effective. The employee did not act in bad faith or abuse the legal system. The fact that she had not criticised the practice for the previous 24 fixed-term agreements did not prevent her claim from succeeding. The employer’s reliance on a practice that was not legally conform was not worthy of protection. The result of the ineffective fixed term was an employment relationship that continued until the notice of dismissal, since issued, took effect.
Consequences for practice
The judgment highlights the need to comply with formal requirements. In contrast to normal employment contracts which do not need to follow any specific form requirements, a fixed-term agreement requires written form to be effective. If the fixed term is invalid because of a failure to comply with the written form requirement, the employment agreement will be concluded for an indefinite period. As the judgment shows, there is no exemption for contracts concluded for a short period.
Employers should pay strict attention to the written form requirement for a fixed-term contracts. In principle, both parties must sign the same document. In addition, the signed fixed-term agreement must reach the employee before the start of the contract. The signatures of both parties must apply to the entire agreement establishing a fixed term. In addition, for the written form requirement, the signatories must sign using their full names. It is not clear, whether he qualified electronic signature fulfils the written form requirement of § 14 (4) of the TzBfG. Some of the legal literature rejects this approach. Numerous pending cases throughout Germany concern the question of whether the qualified electronic signature is sufficient for a fixed-term agreement to be effective. The LAG viewed the qualified electronic signature as a form of signature by one’s own hand. However, there has not been a judgment of the German Federal Labour Court on this matter. For certainty, we recommend that both parties hand sign their name on the contract.