Since 2007, the law on employment contracts has allowed contracts to be signed electronically. Changes in working practices, accelerated by the health crisis, have only accentuated the need for digital signatures, including in the employment context. What are the key points for employers?
Electronic signature goes hand in hand with electronic archiving
Under the Employment Contracts Act, an employment contract signed using an electronic signature created via the electronic identity card (or meeting the same security conditions) is equivalent to an employment contract signed by hand. If the employment contract is signed electronically, a copy of the contract must also be archived with an approved electronic archiving service provider.
There is a catch to this last condition. Despite the text having come into force in 2007, no archiving service provider had been approved until recently. Since the end of 2023, one (single) electronic archiving service provider has been recognised (Electronic signature and other trust services | FPS Economy (fgov.be)).
Low-risk alternatives
Since 2016, a European regulation (which takes precedence over Belgian legislation) has laid down the conditions for the validity of electronic signatures. The fact that an approved electronic archiving service provider is not used has no impact on the validity of signatures that meet the conditions of this regulation.
Thus, a qualified electronic signature (i.e. based on a certificate enabling the signatory to be identified with certainty) is treated in the same way as a handwritten signature. If the employer uses such a system (e.g. signature guaranteed by identification based on the identity card), there can be no challenge to the reliability of the signature.
Many companies also use unqualified signatures. According to the same regulation, this fact alone is not sufficient to invalidate the signature. In this case, it is necessary to demonstrate that the person who used an unqualified signature intended to agree with the content of the document. This risk is generally low: an electronic signature process is often accompanied by emails between the parties (e.g. to exchange documents), making any subsequent challenges to the validity of the signatures unlikely to be credible.
Despite the lack of compliance with Belgian law, the use of such alternative signature systems (particularly if a qualified signature is used) has therefore become low-risk.
Julien Hick, associate lawyer AKD Benelux law firm
Heleen Franco, lawyer AKD Benelux law firm
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