48 (143) 2021

Green Transformation

HR law in the digital age

By Michał Bodziony and Bartosz Wszeborowski, PCS Paruch Chruściel Schiffter | Littler Global
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The past year has shown a growing demand for modern, business-oriented solutions in the field of HR law. Solutions which are designed for the 21st century, maximising employee protection and safety, that are environmentally friendly and allow employers to efficiently manage the work process remotely. We have included some guidelines below which will help employers move their HR processes smoothly into the digital age.

Can you enter into an employment contract remotely?

An employment contract can be concluded remotely if both parties have a qualified electronic signature. Confirming a statement of will with such a signature is equivalent to the hand-written form. But what if an employee doesn’t have a qualified electronic signature? Under the Labour Code, an employment contract should be expressed in writing. In the current situation, however, employers should prioritise employee health and safety, which is the main argument in favour of reducing the number of meetings. All activities that can be done online should be done this way for security reasons.

It is difficult to imagine the labour inspectorate imposing a fine on an employer because they concluded an employment contract using online communication with an employee who does not have a qualified electronic signature. Especially if the execution of this contract was confirmed by the employer and employee in writing as soon as the parties could safely meet.

As for the employees, concluding an employment contract remotely does not generate any risk on their side. Employment law protects their interest. If an employee was admitted to work, it is assumed the employment contract was implied.

Civil-law contracts – what rules apply?

Civil-law contracts, such as contract of mandate (umowa o dzieło) or contract for services (umowa zlecenie), can be concluded in any form, even by submitting declarations in the form of a document without a hand-written signature, for example, by email. However, changing the content of such contracts or terminating them may turn out to be much more complicated. Such contracts usually contain clauses that say the amendment or termination of the contract must be made in writing, or else it would be considered invalid. Therefore, the employer has two choices – either to meet in person with the other party to the civil law contract or to use a qualified electronic signature. If the form prescribed by the contract is not observed, the employer's declaration of intent may not have the expected effect in the light of the law.

Can an overtime request be submitted online?

An overtime request may be issued to an employee in any way, also implicitly. Sometimes even the fact that a supervisor was aware that an employee performed additional duties and didn’t object can be considered a request for working overtime. To protect the company's interest, most employers decide to introduce internal regulations for overtime work. Most often these stipulate that employees can work overtime on two conditions: at the employer’s express request or at the employee’s request, which was granted by the employer in the form of a document. Such a request or consent do not need to be in writing. The entire process of applying for and granting the overtime consent can be done through IT systems created for this purpose or by email. Once introduced, the overtime management system should be used by the employer coherently and consistently. Then, in the event of potential employee claims for the payment of overtime compensation or court fees, the employer can evidence the complete employee overtime record.

Can employers entrust employees with other tasks by e-mail?

Entrusting an employee with tasks other than those specified in their employment contract for a period not longer than three months in a calendar year can be done in any form, also by email or by phone. However, such a request is subject to the following conditions:

  • it must be justified by the specific needs of the employer
  • it cannot result in a reduction in the employee’s basic salary
  • the entrusted duties should correspond to the qualifications of the employee

Entrusting an employee with other tasks turns out to be an interesting alternative to a definitive change to pay and other employment terms and conditions. This applies especially if an employer does not want to permanently modify the employee's obligations.

The above can also apply in the case of requesting an employee to work remotely under the special Covid-19 Act. Admittedly, these regulations state that an employee should perform the same tasks whether working at home or the office. However, it does not necessarily mean that the scope of duties has to be exactly the same. The point is to not change the employee’s type of work (job position) specified in the employment contract when requesting an employee to work remotely. The employer can entrust an employee with different duties within the same job position. And this provision doesn’t exclude the option of entrusting a remote employee with other work for maximum three months in a calendar year. This is a universal right of employers under the Labour Code, which also applies to employees working remotely at the employer's request.

Can an employee consent for pay deductions by email?

Occasionally, employers need to make deductions from employee pay. This happens, for example, when an employee participates in a benefits programme co-financed by the employer, such as private insurance, which may be covered at 80% by the employer and the remaining 20% is deducted from the employee's salary.

According to the Labour Code, such consent to pay deductions must be given in writing. There is a dispute as to whether the phrase ‘in writing’ is equivalent to ‘the written form’ or ‘the form of a document (without a hand-written signature)’. We believe it is the latter. This line of reasoning is supported by two arguments. First, the way the provision was worded: ‘in writing’ and not ‘in written form’. If the legislator meant ‘the written form’, it would have been clearly expressed as such. Second, the purpose of the regulation, which is the unambiguous identification of the person who consented to the pay deduction, is backed by concrete evidence that such consent was actually given. And for this purpose, the form of a document is sufficient.

Taking into account the above arguments, we believe that collecting employee pay deduction by online communication is permissible, especially when using digital tools which facilitate confirmation the employee's identity and generating the consent confirmation. To protect the interest of both the employer and employee, consent may be confirmed on several levels, by submitting a declaration of consent for pay deduction through the electronic system and then verifying it with an SMS code. The pay-deduction consent expressed in this way will enable the identification of both the employee and the date on which the consent was granted.

To protect the interests of the employer and mitigate the risks related to making deductions based solely on electronic consents, it is possible to consider obtaining prior written consent from employees to make deductions from their pay based on electronic confirmations.

How can you terminate an employment relationship without meeting in person?

Employers also face the dilemma of how to end the employment relationship with an employee who is not in the office on a daily basis. According to the Labour Code, the declaration of each party on termination of an employment contract with or without notice should be made in writing. However, the employment contract may be terminated remotely using the employee's electronic mailbox and a qualified electronic signature. As mentioned above, the electronic form with the use of a qualified electronic signature is equivalent to the written form, and an electronic signature is equivalent to a handwritten signature.

However, when an employer intends to give an employee a declaration of will to terminate the employment relationship, the crux of the matter is to make sure that the employee is fit for work and actually performs work on a given day. In other words: when deciding to terminate the employment relationship with an employee by online communication, the employer must make sure that this employee is not, for example, on sick leave or childcare leave.

The termination of the employment contract, sent by email, should be signed with a qualified electronic signature, confirmed by a secure certificate by a person authorised to act in HR law matters. Otherwise, the termination might be considered defective. The employer can send the declaration to the employee's e-mail address. Notably, the employee does not need to have an electronic signature to receive such a declaration from the employer. To open a document signed with a qualified electronic signature, it is sufficient to have an application for opening PDF files.

An employer who wants to part ways with an employee by online communication can also set up a videoconference for this purpose, in which representatives of the employer authorised to act in HR law matters and the employee will participate. The employer should be represented at the meeting by at least two people, who will be able to give a detailed account of how the meeting went in the event of a legal dispute. During the meeting, the employer should send an e-mail to the terminated person containing a statement on termination of the employment contract with or without notice and ask the person to read the e-mail. If possible, the employer should activate the delivery and read receipts to make sure the employee received and read the email. After the end of the online meeting, the employer’s representatives should draw up the minutes of the meeting with all the relevant details concerning the employment termination.

Finally, participants should remember that the option to terminate the employment contract by mutual agreement is always on the table.


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