Sign on the dotted line. . . .
But must it be in ink?
Following one particular question in my Q&As earlier this week, I wanted to delve a little deeper into electronic signatures, as I have had a number of enquiries including one firm of solicitors telling me I have it wrong, and that it’s imperative that terms and conditions of employment must be physically signed. I disagree and here’s why -
Firstly, the starting point is the law itself. It is the very first piece of legislation set out in the Employment Rights Act 1996 - Section 1:
Statement of initial employment particulars.
(1)Where a worker begins employment with an employer, the employer shall give to the worker a written statement of particulars of employment.
So, there it is in black and white - the employer must provide a written statement of particulars of employment, or as we commonly refer - an employment contract. The rest of the section and subsequent sections up to 7B set out what should be included in the statement and other ancillary provisions.
You can read the remaining 238 sections and the Schedules to the Act, but believe me, there is no requirement that the employment particulars/contract must be signed. Nor is there any reference to the signing of a statement of terms of employment/contract in any other employment legislation.
So, the signing of the contract is just an add-on, but probably a very sensible add-on! A signature is a sensible way of affirming the parties’ intention to enter into legally binding obligations and here’s why -
It is obvious that when a person is offered work and they subsequently start work, they have entered into a contract, otherwise they wouldn’t be there. No doubt, matters such as hours, pay, holiday etc were discussed before the employee started, but if there is a dispute, without a written document setting out those terms, they must rely on what was verbally agreed and what in practice actually occurred. And of course that’s were it can get very contentious.
Setting those terms out in a document provides a measure of certainty. They can be referred to and if necessary relied upon to settle disputes. Arguing for instance that you should be given a one hour paid lunch break when in fact it says in your terms you are only entitled to a half hour, and that is what you’re given and have been getting for the past six months since you started, despite you saying your employer promised one hour, is probably not going to get you anywhere, even if there is no signature to the contract. That is because the employer can rely on past performance.
But if you have only just started and the dispute arises immediately, despite the unsigned terms there is going to be a degree of doubt, and rightly so.
However, if the terms were signed there can be no argument because you are in effect going back to your employer and saying, ‘Yes, I’m happy with these terms and conditions and I will give my services in accordance with them’.
Having ascertained that a signed contract is the best was forward, we turn to the legality of the signing. Must the contract be physically signed - as in by a hand, holding a pen and making a mark with ink? The answer to that, in relation to employment contracts is a categorical NO.
In fact, there has been some legal debate along these lines and The Law Society has issued guidance for those wishing to execute a document using an electronic signature.
There are various methods of effecting an electronic signature and the one I referred to in my Q&As was the most simple. An employer sends a copy of the contract in an email to the worker who replies with a return email stating that they accept the terms set out in the attached contract. That in my view is sufficient, but there are other ways of effecting an electronic signature and The Law Society set them out:
Electronic signatures can take a number of different forms, including:
(a) a person typing their name into a contract or into an email containing the terms of a contract
(b) a person electronically pasting their signature (for example, in the form of an image) into an electronic (soft copy) version of the contract in the appropriate place (for example, next to the relevant party’s signature block)
(c) a person accessing a contract through a web-based e-signature platform and clicking to have their name in a typed or handwriting font automatically inserted into the contract in the appropriate place (for example, next to the relevant party’s signature block); and
(d) a person using a finger, light pen or stylus and a touchscreen to write their name electronically in the appropriate place (for example, next to the relevant party’s signature block) in the contract
The digitalisation of the workplace is growing. I no longer possess a filing cabinet. My business is solely cloud based which is secure and complies with my GDPR obligations. It’s clean simple and once you get used to a paperless office, you can work from anywhere.
Having physical files of sensitive data is cumbersome and obliges the holder of the data to treat it extremely carefully. Agreeing terms and conditions by email and forwarding the finished contract electronically saves on the cost of printing and storage. It ticks the environmental and climate change box too!
To sum up:
Electronic signatures are fine, they are legally acceptable and are just as binding as a physical ‘wet ink’ signature as far as employment contracts are concerned. Simply ask an employee to confirm receipt and acceptance of the terms by return email along the lines:
I have read the terms and conditions of employment you have forwarded and agree that these are entirely acceptable and set out the basis of my employment with you.
Joe Bloggs
This should do the trick (and save considerable time and expense).
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