With the transition to remote mode, companies’ employees have begun to use new forms of communication more actively in their work; one of these is rapid messaging systems. But is this form of working communication within the framework of the law, and does employment legislation somehow regulate such communication? And how do judges assess how important the events that occur in the chats are for employees, for example, is it allowable to notify the beginning of a vacation in correspondence? “Raschet” asked Ekaterina Lutenko, Acsour’s Internal Auditor, to come up with answers to these and other questions.
After the mass transition of employees to a remote working format, such communication tools as telephone, e-mail, and personal meetings were supplemented with several new communication methods, but messaging applications became the most relevant. These programs allow for the interaction between employees to be significantly speeded up. Messengers allow labour issues to be quickly resolved, but also documents to be sent and received. At the same time, an important question arises: how does Russian legislation regulate such communication? Is it possible to draw up human resources documents via instant messaging systems? And what actions should be taken to ensure that communication in chat has legal consequences and is, in legal proceedings, evidence of a labour relationship? We will try to find answers to these and other questions using the laws currently in force and the explanations of judges.
Let us start with the main thing: currently, employment legislation does not regulate the rules of interaction between the employer and the employee via messengers, and this is despite the fact that most labour issues are discussed using such services. The same can be said about the drawing up of documents in electronic form: they can be sent via messengers, but it is better to duplicate the most important ones in paper form. For more information about the degree of risk in the drawing up of electronic human resources documents, see the table below.
|Document name||The requirement of the Labour Code of the Russian Federation (LC RF) for the drawing up of the document|
|High risk of document transition in electronic document flow (EDF)|
|Application for transition||Must be in writing under article 72.1 of the LC RF + changes the key conditions of the employment contract (EC)|
|Supplementary agreement for transition||Must be in writing under articles 72 and 72.2 of the LC RF + changes the key conditions of the EC|
|Order for the application of a disciplinary punishment||Against signature under article 193 of the LC RF + changes the key conditions of the EC|
|Letter of resignation at their own initiative||Must be in writing under article 80 of the LC RF + changes the key conditions of the EC|
|Employment contract, appendices and supplementary agreements to it||Must be in writing under articles 57 and 67 of the LC RF|
|Average risk of document transition in EDF|
|Employment policies and procedures||Against signature under articles 68 and 189 of the LC RF|
|Leave schedule||Against signature under article 22 and part 2 of article 123 of the LC RF|
|Order to send an employee on a business trip||Must be in writing according to the Government’s Decree (GD) No.749 dated October 13, 2008|
|Order for transition||Must be in writing according to GD No. 225 “On employment books” dated April 16, 2003|
|Low risk of document transition in EDF|
|Application and order for granting leave||No requirements|
|Sick leave||In electronic form|
|Application for social deductions for personal income tax||Must be in writing under clause 2 of article 219 of the Tax Code of the Russian Federation|
It is important to clarify that the legislature is already looking for a solution to the problem that many companies face today. Administration bill No. 1162885-7 “On amendments to the Labour Code of the Russian Federation”, if adopted, will allow businesses to abandon the mandatory paper documents required for maintaining personnel records. The draft law was sent to the State Duma for consideration as recently as April 29, 2021. It is noteworthy that in accordance with the proposed amendments, employees have the right to refuse to switch to the electronic recording of labour relationships. But this can only be done if such persons number more than half of the total number of employees. Otherwise, the rule for electronic document flow to be introduced will cover the entire organization without exceptions.
Nevertheless, despite the fact that the draft law is under discussion, there are already provisions in Russian legislation that allow companies to maintain, in electronic form, personnel records relating to their employees, although the list of documents is still small. Thus, employment books can be transferred to digital form (article 66.1 of the LC RF), as can sick leave certificates (sub-clause 5 of article 13 of Law No. 255-FZ). In addition, it is possible to draw up and exchange electronic human resources documents with employees working remotely, and the company can draw up and sign employment and apprenticeship contracts; this possibility is provided for in articles 312.2 and 312.3 of the LC RF.
It is worth noting that the courts rarely decline to accept as evidence correspondence between an employee and an employer in messengers. Moreover, such evidence can both play in favour of employers and be used to protect the rights of employees. This should be kept in mind beforehand in order to assess each possible conflict, with all necessary measures being taken in advance to eliminate or prevent it.
Next, we will consider the possibility of electronic personnel document flow.
ELECTRONIC EMPLOYMENT CONTRACT
Is it possible to conclude an employment contract in electronic form and exchange it via messenger? When concluding any contracts, the rules of part 2 of article 434 of the Civil Code of the Russian Federation (CC RF) are applied. The law provides for several options for signing the contract. On the one hand, the document can be drawn up in a single copy signed by both parties. The second option, familiar to the majority of people is when there are several copies, for example, two. At the same time, legislation allows for the exchanging of contracts in electronic form. However, it is necessary to deliver the document through such communication channels that allow it to be accurately established that the contract was sent by one of the parties. Please note that according to the Definition of Federal Law No. 149-FZ dated July 27, 2006, the exchange of information via messengers can create an electronic document. Such provisions of legislation are applicable for civil transactions, but labour relationships do not fall under their scope. The fact is that a contract for work is regulated by the rules of labour, not civil, law and its conclusion in electronic form is not yet provided for (article 67 of the LC RF). The exception is the recruitment of employees working remotely, where the conclusion of an employment contract in this form is not prohibited. Therefore, it is worth paying attention to the procedure for concluding an employment contract and not applying the rules of the CC RF to the drawing up of such documents (the Appellate ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated September 11, 2017 in case No. 33-3510/2017).
Please note that the fact that the parties have not signed an employment contract does not mean that there is no labour relationship. The presence of such a relationship can be proved precisely owing to correspondence in messengers. Based on the screenshots provided, inspectors or judges can conclude that the parties are discussing work-related issues in the chat. An example is seen in the Appellate ruling of the Lipetsk regional court dated December 5, 2018 in case No. 33-4303/2018: the judges concluded that there was an actual employment relationship between the parties to the court dispute. In another case, screenshots of correspondence, audio recordings of voice messages, and the presence of chats created by the employer to discuss a number of issues were also presented. The court considered such evidence sufficient to confirm the fact of an employment relationship (the Appellate ruling of the Omsk regional court dated November 28, 2018 in case No. 33–7850/2018).
Let us focus on one more important aspect. In the above case, the employee received an electronic notification about a change in the date of the end of leave and turning up to work. However, the specialist did not come to work, which was confirmed by the certificate issued by the employer. The court found that the correspondence was sufficient evidence for the employee’s fault to be acknowledged (the Appellate ruling of the Khabarovsk regional court dated May 29, 2017 in case No. 33-4096/2017). The Perm court considered a case when an employee had been reinstated to work, but she had been absent from the office and had not fulfilled her job duties and obligations. In addition, the employee had no evidence of obstacles to her admission to work. In view of this, the employee’s claims were denied, since the company notified the employee of her reinstatement to work via messengers and e-mail (the Appellate ruling of the Perm regional court dated October 4, 2017 in case No. 33-10980/2017).
ADDITIONAL DAYS OFF
What about leave? Is it possible to notify the employer of the wish to rest and obtain permission via chat? Yes, it is. We have been able to find proceedings in which the judges came to this conclusion. The court, having studied the case information, made sure that the internal documents of the organization did not establish an obligation for employees to provide the employer with applications for paid leave at his or her full salary. Therefore, the request to provide additional days off in messengers and the employer’s consent to this is reasonable confirmation of why the employee was not at work during these periods. In addition, the employer was unable to provide evidence indicating that the employee had committed an offense (the Ruling of the Chelyabinsk regional court dated April 8, 2019 in case No. 11-4171/2019).
CANCELLATION OF THE LETTER OF DISMISSAL
There are several situations in which the judges have refused to accept chat correspondence as evidence. The court of cassation of general jurisdiction considered the dismissal of an employee lawful, despite a message sent by him via messenger with a request to cancel the letter of voluntary termination of employment. The court’s opinion was that an intention expressed via messenger cannot be evidence that the employee would like to continue the labour relationship. To cancel the letter of dismissal, he had to draw up a written letter, which in fact did not happen (the Ruling of the Investigation Committee on civil cases dated April 9, 2020 in case No. 8G-1610/2020[88-2714/2020). At the same time, there are court judgments that revoking a letter of resignation via messenger is a legitimate method. In this case, the employee has the right to inform the employer in any form of his or her desire to continue the labour relationship (the Appellate ruling of the Moscow City Court dated May 22, 2019 No. 33-22466/2019).
And another example of the controversial use of electronic documents. Familiarizing an employee with an order for transfer in the corporate database of electronic document flow and placing a mark to this effect is not a proper form of notifying employees. In this case, the legislation does not provide for such a form of employment contract and supplementary agreements to it, as this violates the provisions of articles 72 and 72.1 of the LC RF. Also, in the case under consideration, the employee did not have an electronic signature, with which it would be possible to place a mark confirming his or her familiarization with the document (Appellate ruling No. 33-50084/2018 of the Moscow City Court dated November 14, 2018).
Based on the results of litigation cases, the following conclusions can be made. Messages should, in their content, confirm a specific fact. The very existence of correspondence is not always evidence. The content of the messages should directly indicate the fact that the party would like to prove. Messages from the chat should correspond to the circumstances of the case at the time. Simply stated, there is doubt if an employee submits a letter of resignation a month after a message is received about this. Messages from the chat allow the time to be set clearly when the message was sent and the scope of persons who took part in the correspondence; this should be taken into account when sending instructions or documents. Rules of business communication represent the first step towards solving potential problems. To legalize online correspondence is the second one. In order for the company to use messengers in its work, it is recommended that a clause be specified to this effect in the Employment Policies and Procedures (EPP) and in employees’ employment contracts. First of all, it is necessary to indicate for what purposes the employee will use messengers. This may include receiving tasks from a manager, holding meetings, or exchanging documents that are associated with work and the contents of which are not confidential. It is also possible to specify separate clauses, for example how to use such a messenger: “With the help of electronic methods of interaction, the Employee shall receive tasks, send reports on work performed, and become acquainted with documents. The employee is obliged to check e-mail and messages in messengers (name them) during the working day.” Do not forget to familiarize employees with the EPP against their signature. In conclusion, we also recommend the wordings on electronic interaction contained in the EPP be duplicated in the employment contract. Also, it is possible to specify the duties of an employee in connection with the use of a particular messenger: “For electronic interaction, the Employer allocates to the Employee a corporate e-mail address”, “For the purposes of electronic interaction, the Employer installs a program (name) on the desktop”. It is recommended that the employee’s e-mail address and account in the messenger be specified. This condition will allow for confirmation that this account belongs to a particular employee, for example: “The employee shall create a new account in the program (account name)”.
RULES OF BUSINESS COMMUNICATION: THE FIRST STEP TO SOLVE PROBLEMS
As a rule, correspondence in messengers is less formal in nature than communication by e-mail. And to avoid misunderstandings between the parties to labour relationships, the first thing an employer needs to do is to develop rules of business etiquette. What could these rules be?