FROM PEN TO PENDRIVE - PART VI: PERMISSIVE LABOUR LAW ON E-WRITING IN HUNGARY?

15 June 2023

In our last article we summarised the rules on e-writing in employment law. In this article we will look at judicial practice in regard with the above to examine how lenient the courts are with regard to certain documents.

The previous part of the article is available here: FROM PEN TO PENDRIVE - PART V: GENERAL RULES ON E-WRITING IN LABOUR LAW IN HUNGARY - Blog - Smartlegal

First of all, we would like to point out that, although in judicial practice we have repeatedly encountered a more permissive approach to e-signatures for certain documents, the legal literature still considers the classic paper-based procedure to be the safest.

In the following, we will look at the decisions taken on certain documents in relation to non-classical written documents.

1. Termination of the employment

After a badly done job, the employer informed the employee by text message that he could "receive his notice on Monday". At the meeting on Monday, as the court of first instance rightly pointed out, the text message sent earlier was not subject to the discussion. Later it became a question if the text message terminated the employment, in connection with which the Curia held that the SMS message could not be considered to be a legal declaration capable of producing legal effects.^[1]

As in the above decision, labour law generally takes a stricter approach to dismissal.

The employer notified the employee of his/her extraordinary termination by MSN by scanning the written and signed termination letter and sending it in JPG format to the employee's MSN mailbox. The employer then sent the employee a text message inviting him to use MSN. The employee logged on to the MSN program and, using the program as a communication interface, declared in writing to the employer that he had received the notice of termination sent in JPG format and that he was able to open and read it. The employer's extraordinary notice of termination was duly recorded in writing before being sent via MSN and was digitised by the employer's fax machine by scanning it. The employer therefore produced the original paper version of the document, which was digitised.^[2]

Although in the above case the court was more permissive, in our view the analogy drawn in the judgment is only applicable in cases where a paper version is also produced.

2. Collective redundancies

In an e-mail reply to the employee's e-mail, the employer informed the employee that, as he was also affected by the collective redundancy, his employment would also be terminated. According to the Curia, the e-mail complied with the requirement of being in writing, was capable of reproducing the information unchanged, and identified the person making the declaration and the date on which the declaration was made.[3]

3. Mandatory written form at the request of the employee

The employee worked as a chemotherapy nurse. Her job description contains 38 tasks, of which she only actually provided care for chemotherapy patients. The employer sent an email to the employee informing her that she was expected to work in inpatient care from July, but she refused to fulfil this task, and she asked the employer to give her the instruction in written form (in case if the employee request it the written format is mandatory[4]). The employer terminated the employment for refusing the instruction.

The second instance court and the Curia also found that the instruction given by e-mail met the criteria of a written legal declaration, since the e-mail was capable of identifying the person and the date of the declaration and the information contained in the declaration - the instruction - could be recalled unchanged.[5]

While it can be seen that in some cases the courts are more permissive in employment disputes, the general conclusion is that it is safer for the employer to make important employment agreements or unilateral statements (e.g. employment contract, termination) in the traditional way, i.e. by means of a physical document with a wet signature.