Currently every Polish employer is obliged to keep employees’ personal files in paper form, although no binding legal provision directly provides for obligation to keep and store the files in paper. First of all – what are employees’ personal files? These are numerous documents related to the employment relationship kept separately for every employee and covering the period from the moment of application for a job until the moment of the employment relationship’s termination. Therefore, employees’ personal files include i.a. employment agreement, leave applications, competition ban agreements, statements on termination of employment agreement, etc.
Indeed, it is impossible to find a legal provision which stipulates that the employees’ personal files need to be kept and stored in a paper form. However, the general wording of the Ordinance of the Minister of Labour and Social Policy regarding documentation in matters related to the employment relationship kept by employers and the procedure for keeping personal files dated 28th May 1996 and the General Employment Inspectorate’s standpoint dated 9th April 2010, which is still up to date, prohibit benefiting from another form of keeping and storing of personal files other than the paper one. This has significant consequences for those employers who hire a lot of people or have a huge rotation of workers – in their case the number of paper files increases dramatically every month and year. Hence, such entities often need to turn to professional enterprises which provide storage and archiving services. That obviously entails additional costs. Bearing in mind that currently binding legal provisions impose on employers the obligation to store the documentation related to employment relationship and employees’ remuneration for the period of 50 years, such costs are a significant part of the employer’s budget.
Thus, the draft of law dated 4th November 2016 which aims to amend the current legal provisions related to the keeping and storing of the employees’ personal files, as well as the possibility of their digitalization should be considered as a positive step forward. The proposed amendment is supposed to enter into force partially on 1st June 2017 and partially on 1st June 2018. So what are the projected benefits for employers and employees?
First of all, according to the draft, from 1st June 2017 the employer will be entitled to choose one form of keeping or storing of employment documentation: paper or electronic. This means that enterprises will be authorized to create electronic documents and store them in a digitalized form, as well as to create paper documents and further scan them to store the documentation in an electronic form. The statutory period of documentation storage will be significantly decreased from the current 50 years to a planned 10 years from the end of the calendar year in which the employee terminated his employment relationship in the relevant enterprise. However, the shorter period will concern only those employees who started their job after 31st December 1998; those who began their work before, will not be covered by new regulations related to shorter period of documentation’s storage.
The possibility to create paper documentation, scan it and store it in an electronic form (e.g. as PDF files) does not cause practical problems. Such practice will definitely streamline internal procedures and minimalize the amount of paper documentation in many enterprises. Every employment agreement, leave application or work record certificate will be scanned and stored on a relevant device. Although the possibility provided for in the amendment, which enables the creation of digitalized documents with no paper counterpart thereof is advantageous, it does not seem to be very practical for the moment. Why is that?
The draft of the amendment stipulates that i.a. employment agreement, statement on termination of the employment agreement, leave application or the work record certificate need to have a written form or a certified electronic form with an electronic signature. According to the Polish Civil Code, the only requirement that needs to be met in order to fulfill the obligation of a written form of document is a handwritten signature, enabling identification of its author, regardless of the material on which it has been made (e.g. sheet of paper, touch screen, etc.). This means that a written form encompasses either a simple paper document which is signed by hand or an electronic file signed by hand on a tablet/ touch screen, using a stylus. Thus, a document is considered as a written one also if it is prepared and stored electronically, with no need to be printed, on condition the author signs it by hand on a dedicated device. It can be quite useful for execution of employment agreements if the employer owns such a device and in the case of it executes many agreements with employees and does not wish to be buried in papers. The method is quick, easy and does not require obligation to bear any additional costs.
Contrary to that, receipt of a certified electronic signature is subject to a fee (which amounts to app. 300 PLN) and the obligation to fulfill a few formalities. In order to execute an agreement in such a form, both parties (the employer and the employee) need to have their unique certified electronic signature (so both need to pay 300 PLN).Therefore, it seems unlikely that an employee who submits e.g. a statement on termination of the employment agreement would use a certified electronic signature to prepare a relevant document and sign it, if a simple written form is much easier and less expensive. Hence, the introduction of the possibility of making statements of will and execute contracts in employment relationships using a certified electronic signature is rather an art for art’s sake. Besides, it is hard to share the opinion that the possibility of making statements of will and executing contracts in employment relationships using a certified electronic signature is not authorized under currently binding legal provisions of the Civil Code and requires many amendments.
It is possible that from 1st June 2017 the execution of an employment agreement with a hand signature made on a tablet by the employer and the employee, as well as its storage as an electronic file (with no need to print a copy) will be much more popular than at the moment. However, there is one “but”: the “non - paper” written form will not be used very often by employees for single - sided statements of will (so e.g. leave applications or statements on termination of the employment agreement). It is very easy to imagine that an employee who submits a leave application will rather chose a simple written paper form of a document than look for a touch screen device in order to put a hand signature on it and then deliver such document to the employer.
The amendment in question has not yet been accepted by the lower chamber of the Polish parliament. The legislative procedure thereof can be tracked on the website legislacja.rcl.gov.pl.
Karniol & Wspólnicy Law Firm