Electronic evidence in labor disputes based on case law
Electronic evidence is often used in labor disputes because electronic interaction with staff has already become common practice in organizations.
This article provides a case law-based overview of different situations where electronic evidence was used. This review helps understand what electronic evidence plays or does not play in favor of employers.
Use of electronic evidence in labor disputes
Recognition of relationships as employment relations due to email correspondence
Be careful in electronic correspondence with those people with whom no employment contract has been signed. The Supreme Court has designated electronic correspondence as one of the signs of employment relations between parties.
Discussing work issues through instant messengers can also point to an employee-employer relationship. Such evidence has been accepted, for example, by Samara Regional Court.
SMS can also be deleterious to employers as labor relations can be identified on their basis as done by Khabarovsk Territory Court.
Employee transfer to another position, locality, workplace in electronic form
Employee transfer should not be agreed upon in electronic form, for example, through the corporate electronic document management system. The law does not provide for such form of employment contracts and their additional agreements as indicated by Moscow City Court.
Employee resignation letter sent by email
Do not rush to dismiss employees who have sent their resignation letter by email. Employment contracts may be terminated only based a resignation letter written on paper as indicated by the Supreme Court of the Komi Republic and Moscow City Court.
The opposite is true for withdrawal of resignation letter. Moscow City Court and Kemerovo Regional Court point out that employees may inform in any way including by email that they have reconsidered leaving.
If in doubt whether dismissal should be finalized, it is better to check with the employee.
Redundancy notice by email
Notifying employees of an upcoming dismissal by email is risky. Although Nizhny Novgorod Regional Court considers that redundancy may be notified in any form, the Supreme Court of the Republic of Buryatia does not recognize emails as an appropriate evidence of notification in this case.
There are also risks in offering vacant positions in electronic form to those who are being made redundant. Moscow City Court considers that sending vacancies to staff by corporate email is not sufficient to notify vacancies to those who have been made redundant. However, the chances of winning disputes increase if such emails specify how to choose the vacant position. So, in a similar situation, Moscow City Court deemed valid the vacancy offered on a particular organization’s corporate portal.
Approval of absence in electronic form
The fact that an employee has got his/her absence approved in electronic form may be considered an excused absence from work. Chelyabinsk Regional Court has recognized the correspondence with an employee’s manager through a messenger as sufficient evidence of an agreement on the employee’s days of absence with the manager. Saratov Regional Court has recognized a dismissal unlawful because the organization did not accept the application for time-off sent by the employee in electronic form. The employee was entitled to leave for disabled person. The employer had to grant the days off upon receipt of the email sent by the employee.
What helps strengthening positions in court
Although courts consider electronic evidence on a par with other evidence, taking the following steps should increase the chances of winning disputes.
Duplicate on paper
When employees send documents in electronic form (withdrawal of resignation letter, explanation of misconduct, etc.), ask them to duplicate these documents on paper.
The same applies for HR documents such as, for example, redundancy notice. Try to draw them up not only in electronic form, but also on paper.
Notarize electronic correspondence
To ensure that courts have no doubts about the authenticity of electronic evidence, get it notarized.
Set rules for electronic correspondence
Specify in collective agreements or internal regulations the circumstances and procedure for electronic correspondence. This will help strengthening your evidence and avoid employees referring to unauthorized electronic documents.
Specify in employment contracts the email addresses that the parties should use to exchange messages. In the event of a dispute, you will not have to prove to whom the letters were sent.