Exclusion Clauses: “Textual Form” to be Sufficient

Many employees are not adequately informed as to what a requirement for notification in “written form” encompasses. With regard to exclusion clauses, this lack of information can lead to an inability to exercise certain rights. Generally, exclusion clauses in employment contracts include provisions under which claims arising from the employment contract become void if they are not claimed within three months of maturing. Exercising these rights often requires written form. Lawmakers consider this requirement obstructive as it means that employees, who are unaware of the strict requirements of written form (eg that an email is not sufficient), risk being unable to exercise their rights.

To enable more employees and consumers to exercise their rights, Section 309 No. 13 of the German Civil Code (Buergerliches Gesetzbuch, BGB) has been changed. The change will become valid on October 1, 2016, and bans employers from using provisions that require employees to exercise their rights in anything more specific than “textual form”. In accordance with Section 126b BGB, which defines “textual form”, to exercise rights or claims it will be sufficient for an employee to use email or other forms of communication without a handwritten signature.

Two cases have to be distinguished. Employment contracts signed on or after October 1, 2016, may not contain a requirement for written form. Should such a requirement be included, it is rendered void immediately. The consequence of this will be that statutory limitation periods will apply. This period is set at three years from when a claim matures. The validity of a requirement for written form in a contract signed before October 1, 2016 will not be affected.  However, even the slightest subsequent change to a contract may be considered to be a new contract by an employment court. Therefore, employers should remove the requirement for written form when making contractual changes after October 1, 2016.  Failing to change the written form provision in these circumstances will again render the clause void resulting in the application of the three-year statute of limitation.

In the case of collective bargaining agreements, clauses requiring written form remain valid. Individual contracts may incorporate a collective bargaining agreement containing a written form requirement by general reference to the collective bargaining agreement. The contract of employment should not, however, refer to single clauses of the collective bargaining agreement in order to attempt to incorporate a written form requirement, as this could be considered a circumvention of the rules and the three-year statute of limitation would apply.

Employers are advised to abolish the written form requirement whenever contractual changes are made on or after October 1, 2016 and to include a requirement for textual form only. With regard to collective bargaining agreements, employers should generally refer to the original agreement to avoid unnecessary risks.