Federal Labor Court: Digital Payslips via Employee Mailbox are Permitted
Employers are generally obligated to provide employees with a statement of account in text form when paying remuneration. According to Section 108 (1) sentence 1 of the German Industrial Code (GewO), this requirement can also be fulfilled by making the statement available as an electronic document. Specifically, employers can use a password-protected digital employee mailbox for retrieval.
The Obligation to Provide Payslips
The German Industrial Code (GewO) mandates that employers issue a statement of account in text form upon payment of remuneration. This ensures transparency for employees regarding their earnings and deductions. Consequently, the question often arises whether electronic provision meets this legal requirement.
Background of the Federal Labor Court Case
The recent case before the Federal Labor Court (BAG) involved a salesperson employed in a retail business. The company belonged to a group that had a works agreement in place, dated April 7, 2021. This agreement stipulated that all personnel documents, including payslips, would be made available electronically via an external provider in a password-protected digital employee mailbox.
According to the agreement, if employees could not access these documents on a private device, the employer was required to provide facilities at the company for viewing and printing. Based on this, the employer switched to providing payslips electronically from March 2022. However, the plaintiff objected to this digital method and demanded to continue receiving paper statements.
Regional Labor Court Decision
The Regional Labor Court initially sided with the plaintiff, ruling that the electronic provision of payslips through an online portal was not sufficient. The court argued that remuneration statements are "declarations that require access." It held that a digital employee mailbox is only suitable for receiving such declarations if the recipient has designated it for this purpose in legal and business transactions. This was not deemed to be the case for the plaintiff in this specific dispute.
Federal Labor Court Ruling on Digital Payslips
The defendant's appeal before the Ninth Senate of the Federal Labor Court was successful, leading to the case being referred back to the Regional Labor Court for further review. The BAG clarified several key points regarding the electronic provision of digital payslips:
- Compliance with Text Form: Uploading payslips to a digital employee mailbox generally complies with the text form prescribed by Section 108 (1) sentence 1 GewO.
- "Debt to be Discharged at Source": An employee's entitlement to a payslip is considered a "debt to be discharged at source." This means the employer fulfills their obligation by making the statement available at an electronic distribution point, without being responsible for the employee's actual receipt of the payslip.
- Legitimate Employee Interests: Employers must consider the legitimate interests of employees who lack online access in their private lives. This implies providing alternative access or printing options, as outlined in the works agreement in this case.
This ruling highlights the increasing acceptance of digital processes in employment relationships, aligning with trends towards digital transformation. Businesses should ensure their internal policies, such as those governing employment law for startups, reflect these modern interpretations.
Implications for Works Agreements and Co-determination
The Federal Labor Court also stated that the digital provision of payslips, as regulated in the group works agreement, does not disproportionately interfere with employee rights. This is particularly true when it falls within the scope of Section 87 (1) No. 6 BetrVG, which concerns the introduction and application of technical devices designed to monitor employee conduct or performance.
However, a final decision could not be made because further findings were required. Specifically, it needed to be clarified whether the introduction and operation of the digital employee mailbox truly fell within the remit of the Group Works Council. This aspect is crucial for ensuring proper co-determination rights.
Fazit
The Federal Labor Court's decision provides important guidance for employers regarding the electronic provision of payslips. While digital delivery via an employee mailbox is generally permissible, employers must ensure compliance with text form requirements and consider employees' access capabilities. Furthermore, proper works council involvement remains essential for the lawful implementation of such digital solutions.
Case References:
Federal Labor Court, judgment of January 28, 2025 – 9 AZR 48/24
Lower instance: Higher Labor Court of Lower Saxony, judgment of January 16, 2024 – 9 Sa 575/23