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What is the validity of the electronic signature in labour practice?

By 8 Maio, 2022Maio 27th, 2022No Comments

One of the impacts caused by the COVID-19 pandemic in the last two years has been the increase of the use of digital signatures by companies in the labour context. In fact, the constraints caused by the coronavirus in the free movement of people and goods around the world, meant that companies had to adapt their procedures regarding the insertion of signatures in documents.

To assess the validity of an electronic signature in a given document, it is necessary to observe the rules applicable to digital signatures arising from the regulations No 910/2014 of the European Parliament and of the Council of 23 July 2014 and from Decree-Law No 12/2021 of 9 February, as amended. From these legal diplomas, it follows that there are several modalities of digital signatures, and the several modalities used have an impact on the evidential value that is given to the documents where those signatures are inserted. The broad definition of electronic signature allows the following to be qualified as electronic signatures: (i) scanned handwritten signatures, (ii) digital or cryptographic signatures, through the use of electronic signature platforms such as DocuSign, AdobeSign, among others, or (iii) electronic signature through the Citizen’s Card or the Mobile Digital Key.

But what will be the rule of validity of the electronic signature in the labour context? The rule will be that the documents, that under Portuguese law do not require a written form, may be signed with a simple electronic signature, for example, in the case of employment contracts for an indefinite period of time. On the other hand, in the case of fixed-term employment contracts that require a written form, they must be signed by means of a handwritten signature or by means of a qualified electronic signature. If this legal formality is not observed, this fixed-term employment contract will be considered as an employment contract of indefinite duration, since the clause fixing the term will be null for failure to comply with the requirement.

Ana Santiago @ DCM | Littler