A view at the new requirements for the successful electronic delivery of notices to the employee by the employer.
On an introductory note
Last year marked a fairly substantial tide change in labor law: on 1 October 2023, an amendment to the Labor Code came into force which, among various other things, has to some extent changed the terms on which certain notices may be given electronically. The present article is focusing on this issue of electronic service of important documents by the employer in particular.
In a certain way, electronic service of process was possible even before the aforementioned amendment, but with restrictions that made this mode of delivery impractical.
The new amendment has brought changes which have modernized the whole process of electronic service and made it much more efficient. Fewer categories of notices must now be delivered into the employee’s own hand, and the rules for choosing the manner of delivery have been changed to pave the way for a much broader utilization of electronic service of process in labor-law relations.
Delivery options
The choice of how to deliver notices to the employee is now essentially at the employer’s discretion. Electronic delivery can now be considered as equivalent to personal handover, which means that the employer may (provided that certain statutory conditions are met) choose their preferred mode of delivery. The sole exception is delivery using postal services, which is only possible if delivery at the employer’s workplace is infeasible.
Principles of electronic delivery
If the employer decides to deliver documents to the employee via electronic communication (which in practice will almost always mean: by e-mail), the following conditions must be met:
- The document must be furnished with a recognized electronic signature.
- The employer must have notified the employee beforehand in writing of the terms on which the employer will deliver documents via electronic communication, including the statutory delivery periods.
- The employee must have given consent with this manner of delivery, in a separate written declaration that moreover contains an electronic delivery address which is not under the employer’s control (e.g. a private e-mail address).
- This consent has not been revoked in writing by the employee.
Under these circumstances, a fiction of service within 15 days from the date of delivery applies, i.e., the message is considered duly delivered upon the lapse of this 15-day period. However, if the employee has confirmed delivery in writing or if the sent message is returned as undeliverable, the fiction of service does not apply (and in the latter case, i.e., if the message has been returned as undeliverable, the delivery is deemed to have no effect).
Delivery via databox
Since the passage of the amendment bill, the employee’s prior consent with delivery to their databox is no longer required, with the continued exception of a databox which the employee has rendered inaccessible for deliveries from private individuals, natural persons acting as entrepreneurs, or legal entities under the pertinent provisions of the Act on Electronic Transactions and Authorized Document Conversion.
In the case of delivery to the employee’s databox, the fiction of service applies if the employee does not open the message within 10 days from delivery.
Changes to the circle of important documents
Also, the amendment bill to the Labor Code narrows down the list of “important labor-law documents”, which are to be delivered “into the recipient’s own hands”. These are now called “written acts” and include:
- Unilateral documents concerning the termination of employment / legal relations (such as summary dismissal, dismissal during the trial period, regular notice of termination, etc.).
- Salary letters.
- Removal (or resignment) from the position of an executive employee.
In conclusion
As one can see, the amendment bill to the Labor Code, in its digitalization effort, delivers for the most part practical solutions geared toward the current needs of the market which further facilitate the delivery of important documents between employer and employee. By way of this amendment, employers have gained substantial additional leeway when it comes to alternatives modes of delivery, and this increases the likelihood that notices are served successfully. This means that electronic delivery gains the potential to become the primary mode of delivery for labor-law documents.
All these positive aspects aside, the amendment also harbors a few pitfalls. For instance, one should keep in mind that in the event of a dispute, the employer must be able to prove that the employee actually received the document in question.
Source:
Act No. 281/2023 Coll., amending the Labor Code (Act No. 262/2006 Coll.)