In the era of WhatsApp, apps and LinkedIn we live in , the question arises as to whether the electronic signature of the employment contracts equivalents to the traditional handwritten signature.
In order to answer that question, we must turn our sights to Regulation No 910/2014 on electronic identification and trust services for electronic transactions in the internal market, which lays down uniform rules on electronic signatures throughout the European Union, and Electronic Signature Law 910/2014, of December 19, 2003, the purpose of which is to provide legal transactions with mechanisms designed to guarantee the authorship and authenticity of documents signed electronically.
Specifically, said Law 59/2003 envisages the following types of electronic signature:
- Electronic signature, defined as a set of data in electronic form, provided alongside or associated with such data, which may be used to identify the signatory.
- Advanced electronic signature, allowing the signatory to be identified and any subsequent change to the signed data to be detected. It is uniquely linked to the signatory and to the data to which it relates, and is created using means that the signatory can retain under his/her sole control.
- Recognized electronic signature (known as ‘qualified electronic signature’ under Regulation No 910/2014), which is the advanced electronic signature based on a qualified certificate created by a secure-signature-creation device.
Of the three types of signature, recognized electronic signatures are functionally equivalent to handwritten signatures with respect to data provided in electronic form. Thus, Law 59/2003 states that ‘a recognized electronic signature shall, with respect to data provided in electronic form, have the same value as a handwritten signature in relation to data provided on paper’.
Notwithstanding the foregoing, Law 59/2003 also makes clear that ‘an electronic signature that does not meet the requirements for recognized electronic signatures in relation to the data with which it is associated shall not be deprived of legal effect simply because it was submitted in electronic form’.
Since employment contracts are strictly personal, it is particularly important to ensure the authenticity of the consent given and the proof thereof with respect to each individual employment contract entered into. The recognized or qualified electronic signature is the only signature that guarantees the authenticity, authorship and existence of the consent given by means of the signature. It also offers security against falsification and protection against use by third parties, with the result that it is admissible as evidence in court proceedings. However, that does not mean that an electronic signature which does not meet the requirements for recognized or qualified electronic signatures has no legal effect, as indicated above. The evidential effects of that signature, if it were to be challenged, are a different matter.
In any event, introducing the use of recognized electronic signatures for the signing of employment contracts may give rise to a number of issues, such as:
- Whether the authorization of the worker must be obtained for such introduction.
- The need for the worker to be in possession of an electronic medium to be able to sign his/her employment contract electronically.
- The checks that companies will have to carry out to ensure that the electronic signature used by the worker bears the hallmarks of the recognized electronic signature.
In short, we are presented with the possibility of being able to cut down on red tape, save time and make progress in environmental terms. However, depending on the type of electronic signature used, disputes may arise concerning the validity and proof of the content of the employment contract itself or other labor-related documents, with all the associated implications.