After almost two years of the pandemic and the widespread practice of remote working, the legislator has still not decided to make life easier for employers and extend the activities that can be performed electronically. On the contrary, delivery by mail has been significantly modified to the disadvantage of employers for quite some time in connection with COVID-19.
Pursuant to Article 98 of the so-called COVID-19 Act, a non-delivered letter whose deadline for collection specified in the notification from the post office falls during a state of epidemic threat or a state of epidemic cannot be considered as having been delivered during these states and within 14 days of their being lifted.
For employers, this means significant difficulties in the effective delivery of declarations of intent during the pandemic, especially when the employee avoids collecting his/her mail from the post office, e.g. during a redundancy process.
Before the above-mentioned provision was introduced, it was sufficient for the employer to send the termination letter by registered post with acknowledgement of receipt to the last residential address provided by the employee. In the event of the failure to deliver the letter, the moment of making the declaration of intent to terminate the employment relationship was considered to be the moment when the addressee had the opportunity to become aware of it (at the latest, this is the last possible day of collection of the letter indicated on the second notification from the post office). Delivery in this way has been impossible for almost two years, and as it is dependent on the lifting of the state of epidemic threat or a state of epidemic, it is unlikely to be restored for some time yet.
In order to limit the spread of COVID-19, the Polish Post Office has introduced new guidelines. Registered letters may be put directly into a post box, and the obligation to provide an acknowledgement of receipt has been suspended for courier deliveries. In the case of termination of employment, such methods of delivery may introduce more chaos and legal uncertainty than e-mail delivery.
However, the other options available also have significant disadvantages. Before the pandemic, the most common method was handing the termination letter to the employee in person at the workplace. However, this must now take place under a sanitary regime, and it can still pose certain risks or simple organisational difficulties, especially in companies that have moved almost entirely to remote working.
Problems may also arise when serving a termination letter via courier/authorised employee. First of all, since the employee is not expecting a delivery, he/she may avoid the courier/authorised employee, and the letter cannot be left without acknowledgement of receipt if the employee is not present.
Without doubt, the best solution currently available is to serve the termination letter signed with a qualified electronic signature, which is the equivalent of a wet signature.
Delivering a termination letter by e-mail without a qualified electronic signature is incorrect because termination letters require written form. Although such a letter is valid, it is at the same time defective and may be challenged in court (as a consequence, it may result in the reinstatement of the employee or the obligation to pay him/her compensation).
Therefore, it would be helpful for employers to be able to terminate an employment contract by e-mail without using a qualified electronic signature. This proposal should not be seen as controversial. It would not violate the employee’s right to appeal against the employer’s decision, but would only exclude the possibility of effectively challenging the termination before the court solely on the grounds that the form of the legal act (for which the clause of invalidity has not even been reserved) has been violated. Documents signed with a qualified electronic signature are delivered in the same way (i.e. by e-mail) and this does not cause any concerns.
In other words, this amendment would eliminate the differential impact when sending a termination notice by email bearing a qualified electronic signature by those employers who can afford it and sending the same message without a qualified electronic signature.
Moreover, it is worth considering whether during the pandemic (and – given the already well-established and common practice of remote working – after the pandemic) it should be possible to perform actions other than terminating an employment contract by e-mail without the need for a qualified electronic signature, e.g. concluding an employment contract or making changes to its content. The possibility to confirm the conditions of employment in an simple e-mail message (without qualified electronic signature) seems to be fully sufficient. A wider use of e-mail delivery would certainly make things much easier for both employers and employees, and such improvements should be pursued in the times of the pandemic and remote working.
Emilia Kalecka, Associate