A digital age of evidence in employment disputes

In China, when an employer wishes to terminate an employee’s employment, the burden of proof falls on the employer to show that the statutory grounds for justifying the termination have been met and that the formalities under PRC law have been complied with. In discharging this duty, an employer may have to disclose evidence to support the termination but the way in which this evidence is created is changing.

The rapid development of cloud computing, Big Data and mobile technology has led to a new digital age for businesses. Today, evidence is created, stored and accessed via electronic means, and in response to this change the Judicial Interpretation on the Application of the PRC Civil Procedure Law, has for the first time set out a clear legal definition of "electronic data". In doing so, it has formally recognised electronic data as a valid form of evidence in civil proceedings and therefore employers seeking to rely on this evidence in employment disputes can do so with confidence. The Interpretation defines "electronic data" as including emails, electronic data interchanges (such as instant messenger, online chat forums, blogs, microblogs and short messages), electronic signatures and domain names. Audio and visual materials are also included in the definition of electronic data.

However, relying on this category of evidence might be more difficult that it seems because electronic data can easily be tampered with and its authenticity is hard to verify. This could impact on its admissibility into court but there are some practical steps that employers can take to overcome this problem.

One commonly used practice in China is notarisation. Facts and documents which are notarised in accordance with legal procedures carry strong weight to them and are generally admissible. They are also usually seen as more persuasive than written, audio-visual or even witness testimonies. In relation to notarising electronic evidence stored on a work computer, a qualified notary would need to be present for the whole process from when the employer takes possession of the work computer to when a forensic firm makes a copy of the hard drive and the subsequent sealing of that computer. Notarisation is therefore an expensive solution and one which might not be necessary in the circumstances. Presenting electronic evidence directly to the court from the device it is stored on is a valid alternative to notarisation and in many cases will have equal persuasive value. We suggest that employers seeking to rely on electronic evidence take advice from specialist employment lawyers.