On August 1, 2022, the new Proof Act will come into force. The law had to be amended to meet the requirements of the EU directive on transparent and predictable working conditions. In the previous version, the regulations were not very relevant in practice. However, the changes are now urging employers to act.
1. The previous legal situation
Previously, the Evidence Act required employers to provide their employees with written evidence of the most important terms of the contract within one month of the start of the employment relationship.
The main points were those that are usually also part of the employment contract: contracting parties, start and duration of the employment relationship, place and time of work, activity, remuneration as well as holiday duration and notice periods.
Accordingly, most employers fulfilled the obligations of the Evidence Act by simply handing over the employment contract
2. What will change as a result of the new law?
The new Evidence Act expands and supplements the catalog of contractual conditions to be communicated. Among others, the following points are added:
- End date or duration of a fixed-term employment relationship
- duration of the probationary period
- Composition and amount of wages including overtime pay, surcharges, allowances and bonuses as well as any special payments
- Rest break, rest periods, explanation of the shift system and regulations, if applicable.
In addition, the obligation to inform is extended to include information on pension provision, further training, overtime and work abroad.
Also new are information requirements on the dismissal protection procedure. In addition to the procedure to be followed, they also include the notice periods and the period for filing an action for protection against unfair dismissal. In addition, at least one reference to the written form requirement must be made. Precise wording is particularly important here.
Formally, it is important that the strict written form applies. At least one signature from the employer is required. In Germany, the proof may not be provided in electronic form either, although the European directive expressly permits this. In fact, this means that employment contracts are only concluded in writing.
In addition, the previously one-month period for submitting the information for essential content of the contract is significantly reduced. In the case of new employment contracts, the company must provide information on the first working day at the latest about the name and address of the contracting parties, the composition and amount of the wages, the agreed working hours and the agreed breaks and rest periods, as well as the shift system, the shift rhythm and the requirements for shift changes in the case of agreed shift work. Further information about the start of the employment relationship, if applicable the time limit, the duration of any agreed probationary period, the place of work, the job description and the possibility of ordering overtime must be provided within seven days. The transcript with the other information according to § 2 sentence 2 of the Evidence Act must be handed over no later than one month after the agreed start of the employment relationship. This includes, for example, the duration of vacation, the procedure for giving notice of termination and the deadline for filing an action for protection against dismissal, as well as information on any applicable collective bargaining agreements and company agreements.
3. Need for action by employers – what should employers do now?
The changes will be relevant for both new and existing employment relationships.
Model employment contracts can be adapted to the requirements by supplementing them with the other required information.
Old contracts that were concluded before August 1, 2022 should not be subsequently adjusted, but employers must submit the essential working conditions in writing within seven days upon request. Because of this short deadline, it is advisable to prepare a corresponding template for such a case, which meets the requirements of the new Evidence Act.
4. What are the legal consequences of a violation?
So far, employees could only ask their employer to make up for the missed proof. A violation now constitutes an administrative offence. The employer faces a fine of up to 2.000 euros per violation. However, the effectiveness of the employment relationship remains unaffected.
