In the course of the corona pandemic and the associated increasing digitisation of work processes, the question frequently arises, especially in personnel matters, as to which employment law transaction still even need to be made in writing at all, or whether a short e-mail exchange, for example, is sufficient to quickly and easily process certain matters.
Firstly, we summarise below the legal starting position for the legal situation applying in Germany. This is followed by a tabular overview of the typical employment law transactions and their formal requirements.
Written form or informal?
The legal questions concerning form are regulated by Secs. 125 et seqq. German Civil Code [Bürgerliches Gesetzbuch, BGB]. Pursuant to Sec. 125 sentence 1 BGB, a legal transaction that does not comply with the form prescribed by law or legal transaction (e.g. contract) is null and void. If the written form is required, Sec. 126 (1) BGB stipulates that the contractual document must be signed in person with the signatory's name. Alternatively, according to Sec. 126 (2) sentence 2 BGB, in case of contracts it is possible to only sign the document intended for the respective other party.
Thus, if no legal form is stipulated for the legal transaction, it can be carried out informally, i.e. also (simply) electronically. If the written form is stipulated, the legal transaction fundamentally requires a handwritten signature. A scanned signature, for example, would not be permissible here.
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