1. Under what conditions is an electronic signature legally equivalent to a wet ink signature?
Under French law (implementing the eIDAS Regulation dated 23 July 2014 on electronic signature), electronic agreements bearing an electronic signature have the same legal value as hard copy agreements with a hand-written signature, provided that :
(i) they are established and stored in conditions that guaranty their integrity ;
(ii) the person which established the agreement can be duly identified (art. 1366 of the civil Code) ;
All electronic signatures have the same legal value, whether "simple", "advanced" or "qualified". A simple electronic signature will thus be sufficient to form a valid agreement, even if the advanced or qualified signatures offer more technical guarantees.
The only difference between the different types of signatures will be their evidentiary value. Indeed, a qualified signature will have a stronger evidence value in case of litigation, as it will be deemed reliable: it will be for the party challenging its validity (i.e., the employee if an employee is challenging the existence of the agreement) to prove that the process used was not reliable.
On the opposite, if a simple or advanced signature is used, it belongs to the challenged party (i.e., the employer) to prove that the process was reliable (which can be achieved with the help of the electronic signature service provider).
A qualified electronic signature is a signature that is created by qualified software and that is based on a qualified certificate. A decree dated 28 September 2017 (the hereafter "Decree") specifies its reliability conditions and criteria.
A "Trust List" has been established at national and EU levels, for each EU country to identify the trust services of qualified electronic signatures. At present, France recognises several companies as providers of qualified electronic signatures, such as Click and Trust, DocuSign France, La Poste Group, Yousign etc. Following EU law, a qualified electronic signatures created by a trust service provider recognised in another EU member state for the provision of qualified electronic signatures, shall also be considered as a valid qualified electronic signature in France.
2. In which context a qualified electronic signature is required for the signature of HR documents?
In case of dispute, if an employee contests being the signatory of an employment agreement signed though a simple (or advanced) electronic signature solution, the employer will bear the burden of bringing proof of the reliability of the chosen ES process. To do so, the employer will need to ensure that it has verified the identity of the employee and the mean to communicate with him/her to sign the agreement.
If the employer is not in a position to gather and document this information for each agreement signed electronically (and if he wants to fully avoid the hazards of potential "bad" court decisions), we recommend to use a qualified or advanced electronic signature (AES or QES).
3. Can an employer oblige an employee to sign a document electronically?
No, neither the employer nor the employee can be obliged to electronically sign document, including employment contracts, hence both parties would need to agree to sign electronically a document.
4. What are my legal obligations as an employer for electronic archiving?
As regards HR documents, they can be stored electronically up until the expiry of a period of five years after the end of the employment contract. Employers must also take measures to protect archived data (against damage, loss, etc.), guarantee a limited access to them and enable employees to access their archived data. In addition, as the Labour Inspector has a right to access such documents, employers should ensure an easy and quick access to the stored documents.
5. Electronic HR documents?
A number of HR documents can be sent and stored electronically only (without hard copies), such as the payslips, employment certificate and individual meeting reports. As regards payslips, employees have a right to request a hard copy. With regard to the electronic transmission of those documents, this can only be done if the employer guarantees the integrity, accessibility and confidentiality of the data stored.
6. Can I send a registered letter electronically?
Yes, an electronic registered letter sent via a qualified trust service has the same legal value as a traditional registered letter, provided that the service provider in charge of the delivery guarantees the identity of the sender and recipient (i), the delivery and receipt dates (ii) and, if the recipient is not a professional, his/her preliminary approval has been provided.
The use of electronic letter is not very common in France yet but it may be useful for the employer in the event that the competent person to sign a document and represent the company is located abroad. At present, France recognises the following services as qualified electronic registered mail services: AR24, Clearbus, Darva, Equisign, La Poste Group, Tessi Documents Services.
7. Works Council consultation?
The Social and Economic Committee must be informed and consulted before any major new technology introduction project, including HR digital transformation.
Digital HR is not just an inevitable part of the future of doing business, it is also a strategic tool in the present for attracting candidates. More and more qualified tools and platforms are emerging for employers to streamline their operations and make information more accessible to employer and employee alike. We are here to advise on all your legal questions about digital HR and how to make it work best for your business.