Impact of digitalization on labour law I. – electronic documents
Both employees and employers are open to the opportunities provided by the digitalization, since both sides may benefit from the new forms of flexibility. Thanks to this, the digital technology is already earned its place in several areas of traditional employment relations. However, these snap-in technologies can be both and opportunity and threat for the parties of the traditional employment relationship. Due to digitalization the local and time limits of work become more flexible, thus ensuring greater autonomy for employees, while at the same time significantly better control over their work by employer.[1] In parallel, we have to see, that boundaries of work and private life are becoming more and more blurred by ensuring that employees are constantly available, so the maintenance of a healthy work-life balance requires special attention.
The most significant change the technology has brought into traditional employment relations is the appearance of electronic documents. According to the provisions of Act no. I of 2012 on Labour Code (hereinafter: „Labour Code”) legal acts may be made without particular formal requirements. Written form is only required when the provisions of employment rules or the parties’ agreement prescribes, or in case the employee requests regarding employer’s declaration.[2] Although the Labour Code adopted a liberal approach to recognition of formal requirements, in practice, employment relations are mostly characterized by written form. The requirement of writing form may be fulfilled by electronic documents.[3] Based on the provisions of Labor Code in force, a legal declaration shall be considered as written „if executed by means of an electronic document with facilities for retrieving the information contained in the legal statement unaltered, and for identifying the person making the legal statement and the time when it was made”.
The definition of electronic document is not defined by the Labour Code. The previous Hungarian regulation concerning electronic documents, Act no. XXXV of 2001 on Electronic signature has been repealed by 1st July 2016, so presently, the definition of electronic documents in Hungary is specified by Article 3 Point 35 of Regulation (EU) no. 910/2014 of the European Parliament and of the Council on 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (hereinafter: “ Regulation eIDAS”), according to which “electronic document means any content stored in electronic form, in particular text or sound, visual or audiovisual recording.” The most common form of electronic documents is the electronic mail (e-mail), but short messages (Acronym of short message system in English or SMS), chat conversations and video-calls are also belong here. The forms of communication become an important issue when Labour Code requires written form for legal statements. Without aiming to give an exhaustive list, for example employment contract ( section 44), amendment and termination of employment contract [ section 22.(3)], employer’s information obligation based on section 46, the measure imposing detrimental legal consequences [section 56 (5)], employer’s notification on collective redundancies (section 74-75), communication of work schedule [section97 (4)] as well as agreement concluded by parties on voluntary overtime work – codified by the previous modification of Labour Code – shall be concluded in writing. In principle these legal statements may also be made electronically, even the employment contract may be concluded in electronic document, if executed with facilities for retrieving the information contained in the legal statement unaltered, and for identifying the person making the legal statement and the time when it was made. However, due to the lack of relevant regulation, it is still uncertain how a legal statement can comply with these technical conditions determined in the Labour Code. The regulation on date of delivery of legal statements gives also rise to uncertainty. This makes more difficult the spread of electronic documents in case of more significant legal statements. According to Section 24 (1) of Labour Code, a legal statement made in writing shall be considered served upon delivery to the person concerned or the person authorized to receive it, or at the time when access to the electronic document is provided. An electronic document is considered accessible when the addressee or another person entitled to receive it, has the opportunity to acquaint himself with its content.
Unfortunately, it is also ambiguous, under what circumstances the can we say that the addressee has had the opportunity to acquaint the content of the document. For example, an electronic mail considered disclosed when it arrives in mailbox or when the addressee sign in into his/her mailing system to read his/her mails, or after the addressee signed in and opened an exact mail, or is it an additional requirement that the sender got a confirmation simultaneously with opening the exact mail? Should the addressee has an obligation arisen from the employment relationship to check the e-mails? In case of dispute, the burden of proof to verify the proper delivery lies with the person who made the legal statement.[4] Consequently, although the Labour Code regulates the application of electronic documents in employment relations, due to uncertainty regarding the interpretation and evidence issues, electronic documents have not become popular in case of important legal statements which intend to have significant legal effect.
[1] EUROPEAN ECONOMIC AND SOCIAL COMMITTE: Impact of digitalisation and the on-demand economy on labour markets and the consequences for employment and industrial relations, 2017, oldal.
https://www.eesc.europa.eu/en/our-work/publications-other-work/publications/impact-digitalization-and-
demand-economy-labour-markets-and-consequences-employment-and-industrial-relations (date of download:
16 February 2019)
[2] Section 22 (1) of Mt.
[3]DR. CZIRÓK ANDREA – DR. NYERGES ÉVA: Digitalizáció a munkajogban – Elektronikus munkaügyi folyamatok a
„most” generációja számára. Munkajog, no. III ., page 35., 2018.
[4] A felmondások és azonnali hatályú felmondások gyakorlata – a joggyakorlat-elemző csoport összefoglaló
jelentése. Kúria joggyakorlat-elemző csoportja, 2014. november 24.
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