A digital signature allows documents to be signed electronically with legal validity — no paper or pen required. Under EU law, three signature types exist (simple, advanced, qualified), each meeting different requirements depending on the document type. Important for HR: terminations and termination agreements require written form under German law (§ 623 BGB) — a simple digital signature is not sufficient here.
What Is a Digital Signature?
A digital signature (also: electronic signature) is a technical process that allows individuals to sign digital documents with legal validity. In many cases, it replaces the handwritten signature on paper and enables fully paperless documentation.
Note: The terms "digital signature" and "electronic signature" are often used interchangeably in everyday language. The legally precise term is "electronic signature" as defined by the eIDAS Regulation (EU) No. 910/2014, which establishes the unified European framework. In Germany, §§ 126 and 126a of the Civil Code (BGB) supplement these requirements at the national level.
The Three Signature Types: SES, AES and QES
The eIDAS Regulation distinguishes three security levels:
Simple Electronic Signature (SES): The lowest level. Examples include a scanned signature image, a checkbox in an online form, or a name typed at the end of an email. Often sufficient for documents with no formal requirements, but offers limited evidential value.
Advanced Electronic Signature (AES): This signature is uniquely linked to the signatory, detects subsequent tampering, and is based on a certificate. Most professional eSignature tools (e.g. DocuSign Standard, Yousign) operate at this level.
Qualified Electronic Signature (QES): The highest security level. It requires verified identity (e.g. via video identification) and is legally equivalent to a handwritten signature under § 126a BGB. Only the QES can substitute the statutory written form requirement.
Legal Framework in Germany
§§ 126 and 126a BGB: Written Form and Electronic Form
The German Civil Code (BGB) distinguishes two formal requirements:
- § 126 BGB (Written Form): Requires a handwritten signature on paper. This requirement can generally be replaced by electronic form (§ 126a BGB) — but only where the law explicitly permits it or the parties have agreed to it.
- § 126a BGB (Electronic Form): Allows written form to be substituted by a qualified electronic signature (QES). A simple or advanced signature is not sufficient for this purpose.
§ 623 BGB: The Written Form Requirement in Employment Law
Particularly relevant for HR professionals is § 623 BGB. It stipulates that terminations and termination agreements must strictly comply with the written form requirement. A termination sent by email or signed with a simple digital signature is therefore legally void — regardless of how clear and unambiguous the content may be.
Exceptions using a QES are theoretically conceivable, but legally complex and largely untested in practice. When in doubt: always use a handwritten signature on paper for these document types.
eIDAS Regulation: EU-Wide Framework
The eIDAS Regulation (EU) No. 910/2014 establishes uniform standards across Europe for electronic signatures, seals, and trust services. It defines the three signature types (SES, AES, QES) and determines which trust services are recognised as qualified. For companies in Germany, it is directly applicable EU law.
Which Signature Type Applies to Which HR Documents?
The following overview helps you quickly identify the appropriate signature type:
Caution regarding formal defects: If the legally prescribed form is not observed, the legal transaction is void under § 125 BGB. For a termination without written form, this means: the termination has no legal effect.
Practical Implementation in HR
Selecting the Right eSignature Tool
The market offers numerous providers. Key criteria for HR teams when selecting a tool:
- Signature level: Does the tool support SES, AES and QES — or only one level?
- Identity verification: Does the tool enable secure identity checks for QES (e.g. video identification)?
- GDPR compliance: Where is data stored? Prefer EU-based server locations.
- Integration: Can the tool be integrated into existing HR systems (e.g. HRIS, digital personnel file)?
- Audit trail: Does the tool log all signing steps in a traceable manner?
Well-known tools in the DACH region: Skribble (Switzerland/EU), Yousign (France/EU), DocuSign (US — verify EU data processing agreement!), Adobe Sign.
GDPR Requirements When Using eSignature Tools
When eSignature tools are used, personal data is processed (name, email address, IP address, device data). The following must be observed:
- Data storage: Data should be stored on EU servers, or a valid adequacy decision must be in place.
- Data processing agreement: A Data Processing Agreement (DPA) with the tool provider is mandatory under Art. 28 GDPR.
- Deletion policy: Signed documents must be deletable once statutory retention periods have expired.
In the context of hybrid working models, the use of digital signatures has increased considerably — making a thorough tool selection process all the more important.
Checklist: What to Verify Before Using Digital Signatures
Before introducing eSignatures into your HR processes, clarify the following points:
- For which document types will digital signatures be used?
- Which signature type is legally required (SES / AES / QES)?
- Is the chosen provider GDPR-compliant (DPA signed)?
- Is there an audit trail that can serve as evidence in the event of a dispute?
- Are employees and managers trained in using the tool?
- Are exceptions for documents requiring written form (termination, termination agreement) clearly communicated?
Signing documents digitally can also be part of a modern onboarding process — for example, when signing employment contracts or privacy notices.
Frequently Asked Questions About Digital Signatures
Is a digital signature legally valid in Germany?
Generally yes — but it depends on the signature type and the document type. For documents with no formal requirements, a simple electronic signature (SES) is often sufficient. For documents subject to the statutory written form requirement (e.g. termination under § 623 BGB), a qualified electronic signature (QES) or a handwritten signature is mandatory. The legal basis is formed by the eIDAS Regulation and §§ 126 and 126a BGB.
Can an employment contract be signed digitally?
Yes. Employment contracts in Germany are generally not subject to any statutory written form requirement. Signing with a simple or advanced electronic signature is legally permissible. Exceptions may arise from collective agreements or individually agreed formal clauses — this should be checked on a case-by-case basis. For evidential purposes, at least an AES is recommended.
What is the difference between a simple and a qualified electronic signature?
A simple electronic signature (SES) includes any electronic data linked to a document — such as a scanned signature image. It offers limited evidential value. A qualified electronic signature (QES), by contrast, requires verified identity (e.g. via video identification) and a qualified certificate from an accredited trust service provider. Only the QES is legally equivalent to a handwritten signature under § 126a BGB.
Is a digital signature permitted for a termination notice?
No. § 623 BGB explicitly requires written form for terminations and termination agreements. A termination sent by email or signed with a simple or advanced digital signature is void — meaning: legally ineffective. A handwritten signature on paper remains the only safe option here.
What happens in the event of a formal defect?
If the legally prescribed form is not observed, the legal transaction in question is void under § 125 BGB. For a termination, this means concretely: the termination has no legal effect and the employment relationship continues. Formal defects can give rise to costly legal disputes — which is why clarity about formal requirements for every document type is essential.
Are eSignature tools GDPR-compliant?
It depends on the provider. Tools with EU-based servers (e.g. Skribble, Yousign) are generally easier to operate in GDPR compliance than US-based providers. For international tools, it must be verified whether a valid adequacy decision or standard contractual clauses are in place. In any case, a Data Processing Agreement (DPA) under Art. 28 GDPR is required.
Is a scanned signature in a PDF sufficient as legal evidence?
A scanned signature qualifies as a simple electronic signature (SES) and has limited evidential value in a dispute, as it can be easily falsified. For reliable documentation, tools are recommended that record a complete audit trail (timestamp, IP address, identity verification) and operate at least at AES level.
Conclusion
The digital signature is an important building block of modern HR processes — it saves time, enables remote onboarding, and reduces paperwork. The decisive factor, however, is selecting the right signature type for each document type. For documents with no formal requirements — such as employment contracts, NDAs, or employment references — a simple or advanced electronic signature is often sufficient. For terminations and termination agreements, § 623 BGB prescribes written form — no digital signature may be used as a substitute here.
Organisations introducing eSignature tools should pay close attention to EU compliance, GDPR requirements, and clear internal process rules — and seek specialist legal advice when in doubt.
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Sources
- § 126 BGB – Written Form. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/bgb/__126.html
- § 126a BGB – Electronic Form. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/bgb/__126a.html
- § 125 BGB – Nullity Due to Defect of Form. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/bgb/__125.html
- § 623 BGB – Written Form for Termination. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/bgb/__623.html
- Regulation (EU) No. 910/2014 of the European Parliament and of the Council (eIDAS Regulation). European Parliament and Council, 2014. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014R0910
- Electronic Signatures – Guide for Businesses. Bitkom e.V., 2022. https://www.bitkom.org
- Electronic Signature in Employment Law. Haufe Editorial Team, 2024. https://www.haufe.de
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