FROM PEN TO PENDRIVE - PART V: GENERAL RULES ON E-WRITING IN LABOUR LAW IN HUNGARY

18 May 2023

The use of electronic documents is very popular in the field of labour law among both employers and employees. Although e-signatures may seem like a good and simple solution for many labour law documents, it is worth first examining the regulations applicable to the documents. In this article we will introduce the general regulations on the labour law documents and in our next article we will examine the judicial practice in relation to different kind of documents.

The previous part of the article is available here: FROM PEN TO PENDRIVE - PART IV: E-WRITING IN COMPANY LAW IN HUNGARY? - Blog - Smartlegal

In relation to electronic labour law declarations, there are two aspects that we shall consider:

1. legality (validity) of the e-signed document, and
2. how can the employer prove the delivery of the electronic document or communication to the employee.

1. Legality of e-signed labour documents

First and foremost, the legality of an e-signed labour law document depends on the circumstance whether the declarations in the document require written form or not.

According to the basic rule of Hungarian labour law, declarations can be made in any form, so in writing, orally or by implicit conduct[1].

In case written form is not required, the electronic labour law document or communication may be legal with any kind of signature or even without signature, it is another question that such documents may not be suitable for proof in a court procedure, therefore they are less safe than documents which meet the criteria of written form.

However, there are many exceptions throughout the Labour Code (more than 50 different type of declarations) where written form is required for the validity of the declaration, including the employment contract, communication of the work schedule, non-competition agreement, any amendment to, termination of an agreement which required written form (e.g. the employment contract), etc.

It can be stated that the important statements significantly affecting the relationship generally require written form. Agreements, policies may contain additional exceptions.

The Labour Code does not state exactly which e-signatures fulfil the criteria of written form, it only stipulates the criteria, on the basis of which it can be assessed on a case-by-case basis if a certain e-signed document can be considered written or not. The e-signed document can be considered to be in written form if it:

1. ensures the unchanged recall of the content of the statement, AND
2. allows the identity of the declarant to be established, AND
3. allows the date of making the statement to be determined.

The jurisprudence sets different requirements for each document, however, we can only be sure that a labour court will consider the document as written, in case it was signed with qualified or at least advanced electronic signature.

2. Delivery of the e-signed document

We also have to emphasise that electronic labour law declarations carry another risk in addition to the acceptance of the e-signature by the court/authorities: the employer has to be able to prove not only the content of the declaration, but also that it was delivered to the employee, which can be problematic in case of electronic communication.

The root of the problem is that an e-signature loses its legal value when printed, which means that in order to maintain its legal value, the e-signed document shall stay in electronic form, which means it shall be delivered to the recipient (e.g. the employee) by electronic means.

In our opinion, electronic delivery is a risk factor compared to “traditional” delivery (i.e. personal delivery or postal delivery) because proving the delivery of an email or other electronic communication is more difficult than proving the delivery of a physical document, where the employee usually confirms takeover by signing the document or the postal return receipt.

Therefore, the general conclusion is that it is safer for the employer to make important labour law agreements or unilateral declarations in the traditional way, i.e. physical document with wet signature.

In our next article we will look at judicial practice in regard with the above to examine how lenient the courts are with regard to certain documents.