Labour law newsletter

Labour law newsletter

Changes to form requirements since 01/01/2025

The 4th Bureaucracy Reduction Act (BEG IV) is intended to promote digitalisation and reduce the burden on companies.

The relevant changes to labour law that have been in force since 01.01.2025 include

Employment contracts

• Since 01.01.2025, employment contracts can be concluded in text form. This means by email or PDF, without a handwritten signature. The prerequisite is that the contract is legible, can be saved and printed and the sender’s identity is recognisable. A request for proof of receipt should be included.
• However, an exception is made for sectors that are subject to special requirements under Section 2a (1) of the Act to Combat Clandestine Employment (e.g. construction or catering). Here, the legislator continues to stipulate the stricter written form requirement for the protection of employees.
• In future, the text form will also be sufficient for agreements on the limitation of the employment relationship up to the standard retirement age. This exception to the written form requirement for fixed-term arrangements is now governed by the newly created Section 41 (2) SGB VI.
• However, fixed-term employment contracts are still subject to a strict written form requirement (Section 14 (4) TzBfG).

Certificate of employment

In future, the reference can be issued in electronic form with the employee’s consent.

Applying for parental leave and care leave/family care leave

• Parental leave can be applied for in text form for children born on or after 1 May 2025. The text form applies both to the application for part-time work during parental leave (also with another employer) and to its rejection by the employer.
• Claiming/announcing care leave in text form in future. The same applies to the utilisation of family care leave. However, a written agreement must still be made between the employer and employee regarding the reduction and distribution of working hours.

Temporary employment

In future, the text form will suffice for the temporary employment contract between the lender and the hirer, Section 12 (1) sentence 1 AÜG.

Working Hours Act and Youth Labour Protection Act

• In future, employers’ obligations to post notices (e.g. laws and company agreements) can also be fulfilled in electronic form “via the information and communication technology commonly used in the company or office” if all employees have access to the information;
• With regard to the Youth Labour Protection Act, the duty to inform concerns the duty to provide information on the start and end of regular daily working hours and breaks (also electronically); if the Youth Labour Protection Act also provides for written actions, these can also be in text form.

Cancellation by registered letter: better not!

The receipt of a notice of termination is always a central problem in labour law practice, especially if the employee disputes receipt. The burden of presentation and proof lies with the employer.

Dismissal by registered letter is simple and legally secure – according to the widespread opinion, prima facie evidence of receipt can be assumed. The Federal Labour Court (BAG) denied this in its decision of 30.01.2025 – 2AZR 68/24:

What had happened?

A medical practice dismissed the medical assistant, who made a note of a corona vaccination in her husband’s patient file, after several attempts at dismissal and a pregnancy in the meantime, including extraordinary dismissal by registered letter. The employee denied receipt. The employer submitted the proof of posting to Deutsche Post AG, the consignment number and a consignment status searched on the Internet. This was not sufficient for the BAG to prove prima facie that the letter was actually received by the employee:

Since the dispatch of a letter cannot provide proof of its receipt, the proof of posting is irrelevant to the question of receipt.

The printout of the consignment status, on which the same consignment number as on the proof of posting and the date of delivery are noted, also does not provide sufficient guarantee of receipt. In this case, it is not possible to determine who delivered the consignment. The consignment status is no substitute for the proof of delivery. It says nothing about whether the deliverer actually paid particular attention to the specific delivery, which would justify the conclusion that the posted item was delivered to the recipient’s letterbox. This conclusion is further supported by the fact that the status of the consignment submitted by the employer does not indicate to whom the delivery was made (personally to the recipient, to another person in the recipient’s household or deposited in the letterbox), nor at what time, at what address or at least in which delivery district.

The employer was unable to provide proof of delivery, meaning that the employment relationship was not terminated by the extraordinary termination due to a lack of proof of receipt.

What follows from this?

If the employer has delivered the notice of termination by registered post and the employee disputes receipt, the employer must take action and request the proof of delivery from Deutsche Post AG. This will only be stored for 15 months. A proof of posting is not sufficient to prove receipt.

Cancellation by registered post should therefore never be the first choice. It is better to hand over the cancellation in person (always against acknowledgement of receipt) or deliver it by courier – with documentation that the signed original cancellation was placed in the envelope and that this envelope was posted in the letterbox with a precise record of the date and time and, at best, with witnesses co-signing the record.

Summertime is holiday time: the top 5 questions

1. Who is entitled to holiday?

All employees, including part-time employees, marginally employed persons (“mini-jobbers”, temporary workers) and trainees are entitled to paid holiday leave.

2. How much holiday entitlement is there?

The statutory minimum holiday entitlement is 24 working days for a 6-day week and 20 working days for a 5-day week. The employer can also grant additional statutory/contractual leave. The average holiday entitlement is between 25 and 30 days. Severely disabled persons are entitled to 5 days of additional leave. Employees in care organisations are entitled to additional leave of 9 days above the statutory minimum leave.

The full holiday entitlement arises after a period of employment of 6 months.

3. The employee is sick on holiday, what happens to the holiday entitlement?

If there is an illness that leads to incapacity for work, the holiday days are credited and are deemed not to have been taken. However, this only applies on condition that a doctor’s certificate proves that the employee was unable to work during the holiday. There is no extension of the holiday; the holiday days can be taken at a later date.

4. Can the employer refuse leave?

Leave must be granted unless there are urgent operational requirements. For example, a high order backlog or priority holiday requests from other employees. If the employer refuses to grant leave, the employee still has no right to take leave themselves and must apply to the labour court for an interim injunction.

Self-leave can lead to a warning or even termination of the employment relationship.

5. When does holiday expire?

According to Section 7 (3) BUrlG, holiday can only expire if the employer has specifically requested the employee to take the holiday and has clearly and promptly informed the employee that the holiday will otherwise expire at the end of the calendar year. The employer has an obligation to co-operate. The statutory obligations to co-operate can be modified with regard to contractual additional leave, as the Federal Leave Act only applies to statutory minimum leave.

A distinction should therefore be made in employment contracts between statutory minimum leave and contractual additional leave. It should be clarified that statutory leave is taken first and additional contractual leave is only taken once it has been granted in full. Furthermore, a provision should be included stating that contractual leave must be taken within the calendar year and will otherwise be forfeited, irrespective of the employer’s obligation to co-operate.