Can a notice of employment be sent electronically without an e-signature?
Can a notice of employment be sent electronically without an e-signature?
The law does not prohibit either the employer or the employee from preparing and sending a notice of employment in electronic format, but a notice of employment sent by e-mail without an e-signature is not binding on the employee if there was no prior agreement on such procedure.
Despite the fact that the legal norm entered into force on January 1, 2015 and not even 10 years have passed since its introduction, the legislator should consider its improvement. We review this and other relevant legal norms in the article.
The right to terminate employment by e-mail
When adopting Article 112.1 of the Labor Law (DL), special attention was paid to notification of termination of employment via e-mail, using a secure e-signature. Through the article, the DL is supposed to provide similar regulation as contained in the Law on Administrative Procedure and the Law on Notification. The presumption is fixed that the notice is considered received on the second working day after it is sent, if the notice is sent via e-mail using a secure e-signature.
In order to evaluate whether a document is considered to be signed by hand, if it has a secure e-signature, several articles of the law must be taken into account - Article 112.1 of the DL, Article 4 of the Legal Validity of Documents Law (DJSL) and Article 3 of the Electronic Documents Law (EDL). .part.
What is a qualified e-signature?
ELD. The dot indicates that it is an advanced e-signature created with a qualified e-signature creation device according to a qualified e-signature certificate. Accordingly, it can be concluded that not all e-signatures are considered secure and comply with Article 112.1, Part 1 of the DL. For example, both "eParaksts", which is widely used in Latvia, and "Dokobit", which is popular among foreigners, are recognized as secure e-signatures.
Analyzing the scope of Article 112.1 of the DL, the Supreme Court has come to several findings:
Article DL112.1 cannot be translated broadly;
the notice is not considered a binding action for the other party if it is sent using internal e-mail correspondence without attaching a document signed with a secure e-signature.
It should be noted that a notice signed with a secure e-signature and sent to the e-mail created for the work of the employer or the employee is binding only if the parties have agreed to it in the employment contract.
Notice in e-format - what to consider
When considering an agreement on the right to terminate an employment contract using a secure e-signature, there are several considerations that should be taken into account from an employee protection perspective:
in the employment contract, it is necessary to specify the employee's privately created e-mail address for receiving notice of termination. It is recommended to avoid the use of an e-mail created/assigned by the employer in order to prevent situations in which the employee's access to the work e-mail is denied due to various circumstances or in which the employee is not expected to continue reviewing the messages received in the work e-mail (e.g. Law in the case specified in Article, when the employee is suspended from work);
it would be advisable for an employee whose daily work is not related to working at a computer and regularly reviewing his electronic mailbox to avoid an agreement with the employer on receiving notice of termination in electronic form. By agreeing to this, the employee potentially puts himself in a disadvantageous situation, as he may notice the termination late, thus leaving less time for the employee to prepare a possible appeal of the termination and to search for a new job.
It would be proportionate to distinguish between two situations in Article 112.1 of the DL:
the employer's notice to the employee;
employee's notice to the employer.
Article 5, Part 1 of the Official Electronic Address Law (OEAL) stipulates that the use of an official electronic address is mandatory for a company registered in the Enterprise Register and to which this norm applies from January 1, 2023 (in accordance with Clause 3 of the transitional provisions of the OEAL ). In accordance with the law, it can be concluded that from January 1, 2023, all the above-mentioned companies are obliged to regularly check their e-mail.
Although some employers may not fall under the category of "Entity registered in the Register of Enterprises" (for example, natural persons registered as VAT payers), it cannot be denied that the largest category of employers falls under it. In view of this, it would be worth considering the proposal that the employee has the right to send a notice of termination to the employer by signing it with a secure e-signature even if the parties have not agreed on this in the employment contract.
Perhaps, this could facilitate the employee's right to terminate the employment relationship, especially in situations where the employee works remotely.
Despite the fact that the legal norm entered into force on January 1, 2015 and not even 10 years have passed since its introduction, the legislator should consider its improvement. We review this and other relevant legal norms in the article.
The right to terminate employment by e-mail
When adopting Article 112.1 of the Labor Law (DL), special attention was paid to notification of termination of employment via e-mail, using a secure e-signature. Through the article, the DL is supposed to provide similar regulation as contained in the Law on Administrative Procedure and the Law on Notification. The presumption is fixed that the notice is considered received on the second working day after it is sent, if the notice is sent via e-mail using a secure e-signature.
In order to evaluate whether a document is considered to be signed by hand, if it has a secure e-signature, several articles of the law must be taken into account - Article 112.1 of the DL, Article 4 of the Legal Validity of Documents Law (DJSL) and Article 3 of the Electronic Documents Law (EDL). .part.
What is a qualified e-signature?
ELD. The dot indicates that it is an advanced e-signature created with a qualified e-signature creation device according to a qualified e-signature certificate. Accordingly, it can be concluded that not all e-signatures are considered secure and comply with Article 112.1, Part 1 of the DL. For example, both "eParaksts", which is widely used in Latvia, and "Dokobit", which is popular among foreigners, are recognized as secure e-signatures.
Analyzing the scope of Article 112.1 of the DL, the Supreme Court has come to several findings:
Article DL112.1 cannot be translated broadly;
the notice is not considered a binding action for the other party if it is sent using internal e-mail correspondence without attaching a document signed with a secure e-signature.
It should be noted that a notice signed with a secure e-signature and sent to the e-mail created for the work of the employer or the employee is binding only if the parties have agreed to it in the employment contract.
Notice in e-format - what to consider
When considering an agreement on the right to terminate an employment contract using a secure e-signature, there are several considerations that should be taken into account from an employee protection perspective:
in the employment contract, it is necessary to specify the employee's privately created e-mail address for receiving notice of termination. It is recommended to avoid the use of an e-mail created/assigned by the employer in order to prevent situations in which the employee's access to the work e-mail is denied due to various circumstances or in which the employee is not expected to continue reviewing the messages received in the work e-mail (e.g. Law in the case specified in Article, when the employee is suspended from work);
it would be advisable for an employee whose daily work is not related to working at a computer and regularly reviewing his electronic mailbox to avoid an agreement with the employer on receiving notice of termination in electronic form. By agreeing to this, the employee potentially puts himself in a disadvantageous situation, as he may notice the termination late, thus leaving less time for the employee to prepare a possible appeal of the termination and to search for a new job.
It would be proportionate to distinguish between two situations in Article 112.1 of the DL:
the employer's notice to the employee;
employee's notice to the employer.
Article 5, Part 1 of the Official Electronic Address Law (OEAL) stipulates that the use of an official electronic address is mandatory for a company registered in the Enterprise Register and to which this norm applies from January 1, 2023 (in accordance with Clause 3 of the transitional provisions of the OEAL ). In accordance with the law, it can be concluded that from January 1, 2023, all the above-mentioned companies are obliged to regularly check their e-mail.
Although some employers may not fall under the category of "Entity registered in the Register of Enterprises" (for example, natural persons registered as VAT payers), it cannot be denied that the largest category of employers falls under it. In view of this, it would be worth considering the proposal that the employee has the right to send a notice of termination to the employer by signing it with a secure e-signature even if the parties have not agreed on this in the employment contract.
Perhaps, this could facilitate the employee's right to terminate the employment relationship, especially in situations where the employee works remotely.