Not every type of digital signature has the same effect as a handwritten signature. This can lead to unpleasant surprises. This article highlights the pitfalls for the area of employment law.
Pitfalls in the conclusion and content of the employment contract
Under Swiss law, an employment contract under private law can generally be concluded without any formalities. This means that any type of contract conclusion is eligible - and thus any type of digital signature (QES; FES; simple digital signature; digitally copied signature) is also suitable for concluding the contract.
However, there are weighty exceptions. The law (Swiss Code of Obligations) has formal requirements for certain agreements that are usually included in employment contracts. For example, it must be agreed in writing that overtime worked will not be paid or compensated separately. Similarly, a post-contractual non-competition clause, for example, must be agreed in writing. In addition, collective employment agreements regularly provide that provisions contained therein may only be deviated from in writing.
Written form within the meaning of the law requires a handwritten signature. Alternatively, only so-called qualified electronic signatures are permitted in accordance with the Federal Electronic Signature Act of March 18, 2016 (QES). Cf. on the legal validity of digital signatures.
A signature with a digital signature that does not meet the requirements for a qualified electronic signature is therefore not sufficient for the legal validity of the aforementioned clauses. In other words, the use of advanced electronic signatures (FES) or simple electronic signatures (e.g. standard DocuSign solution) is not sufficient. Nor, of course, are digitally copied signatures sufficient. The use of such insufficient digital signatures leads to an employment contract being valid in principle, but the contract may contain provisions that have not been validly agreed and are therefore not enforceable (partial invalidity due to lack of form).
Pitfalls with amendments to the employment contract and regulations
In the case of amendments to the employment contract and regulations, the same restrictions must be taken into account with regard to form as when the contract was concluded.
In addition, contracts and/or regulations often contain an agreement according to which amendments are only possible in writing (written form requirement). Here, too, written form means that only a qualified electronic signature can replace the handwritten signature.
However, it is possible within the scope of contractual freedom to give the term "written form" a different, specifically regulated meaning in a collective employment agreement, employment contract or in regulations (e.g. that an email or simple digital signature is sufficient for compliance with the written form). Such a contractual provision should be made expressly.
Pitfall of termination of employment contract
According to legal regulations, an employment relationship can be terminated informally. However, it is often the case that collective employment agreement, individual employment contracts or even regulations stipulate that the termination of the employment relationship must be made in writing. Here again, the same restrictions apply as already mentioned: Written form generally means that a handwritten signature or a qualified electronic signature is required, unless otherwise agreed. If the formal requirement is not complied with, the notice of termination is void and therefore invalid (invalidity due to lack of form).
Pitfall of reference letters
The law does not stipulate any particular form for reference letter.
According to prevailing doctrine and case law, however, the reference letter must be signed, whereby, as things stand today, there is even a tendency to grant a claim to a handwritten signature. However, it can be assumed that this will change with the further spread of digital signatures.
Conclusion
Anyone who wants to use digital processes with digital signatures in the Human Resources department will do well to check the chosen technical solution legally in advance. Only those who use qualified electronic signatures (QES) are on the safe side.
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