With the majority of the internal discussion being undertaken via the digital platforms such as WhatsApp and Slack, the chats available on such platforms plays a pivotal role in the internal inquiries as well as any future legal disputes arising out of such internal inquiries. This shift in the mode of communication requires both the company and the employee to review the terms governing the internal practices and ensure that they maintain a legally compliant record of the communication with respect to any dispute.
The article aims to shed light on the manner by which the Company and the employee may structure their arguments and record building so as to ensure the enforceability of the WhatsApp and Slack records in the internal investigation. It further shed light on the legal framework of the issue, privacy regulations, retention policy of the entities , evidentiary requirements for such electronic document and the potential risk of dispute.
Is WhatsApp and Slack chat admissible during internal investigations in India?
Yes, the Indian legislation provide mechanism for electronic evidence to be admissible in the court of law. To this effect, the WhatsApp and Slack chat may be considered as electronic evidence and can be used for any disputes whether internal or external. To this effect any electronic evidence which has been placed before the Hon’ble Authorities must be accompanied with a Section 63 certificate.
The dispute mechanism and any determining of violation shall be determined based on the burden of proof. Civil proceeding such as internal disputes and labour law disputes is subject to the preponderance of probabilities and not beyond reasonable doubt which is generally applicable on criminal proceedings. While the legal proceeding does not mandate specific evidence to be produced to determine the proceedings, the concerned party must ensure that it has well recorded and legally permissible electronic evidence to ensure better legally defensibility.
What qualifies as “electronic records” under Indian law?
The Information Technology Act, 2000 and the Bharatiya Sakshya Adhiniyam, 2023 are the primary statutory regulations governing electronic evidence. The applicable laws provides that the following may constitute as electronic records:
- Emails, WhatsApp and Slack messages;
- Digital information including documents and images;
- Server logs including access and deletion; and
- Audio recordings.
The Bharatiya Sakshya Adhiniyam, 2023 under the Section 63 mandates that any electronic evidence which has been filed before the Hon’ble Authority must be accompanied with a certificate in accordance with the section otherwise the admissibility of such evidence shall be based on the discretion of the concerned authority.
Is admissibility under Evidence Act applicable to domestic inquiries?
No, the Bharatiya Sakshya Adhiniyam, 2023 is generally not applicable on the internal or domestic investigation. However, certain entities may set up legal policies which embody the provisions of the Indian Evidence Act making such provisions applicable on the internal investigation. Furthermore:The entity must ensure that the material and internal proceeding which are collected with reference to internal proceedings are admissible in the court of law.
In the event that the evidence is deemed inadmissible in the court of law, the defensibility or the entity or the employee can hamper the arguments.
How have Indian courts treated chat-based evidence in disciplinary matters?
In various precedents, the Hon’ble Courts have:
- Admitted WhatsApp chats as evidence once the chat has been authenticated.Determined the admissibility of a screen shots where the same cannot be verified.
- Recommended the importance of procedural fairness when using digital communications.
While determining cases of termination of employment in India, the hon’ble Courts have placed consideration on the digital communication to the extent that:
- Whether the employee was provided reasonable opportunity to refute the chats.
- Evidence had been interpreted by the Court.
- Whether such evidence is in corroborate to the arguments and other evidence.
Does the section 63 certificate have to be based on WhatsApp or Slack messages in an internal investigation?
The internal investigation does not mandate the parties to the dispute to produce a Section 63 certificate. The requirement for the production of the certificate arises during the dispute before the hon’ble authority.
However, it is advised that employer may undertake the internal procedures which ensures that any document established in the internal dispute shall be admissible under the court of law.
When is Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 triggered?
Section 63 applies to electronic evidence in the following circumstances:
An electronic record is produced before the Hon’ble Authority.Any party to the disputes wishes to produce copies of the electronic record in the court of law.The certificate must contain the following details pertaining to the electronic record:
- Determine the electronic record.
- Describe the device used to produce the electronic record.
- Ensure that the system is used regularly by the party to access such electronic record.
- Authenticate integrity of the electronic record.
Lack of any of the details produced hereinabove may make the electronic record and the certificate 63 inadmissible in the court.
Is a Section 63 certificate a domestic requirement or a court requirement only?
The Section 63 applies to instances where the dispute is pending before the Hon’ble Authority. The requirement does not arise in the internal investigation unless the internal policy mandates the same.
Who is supposed to be the issuer of the Section 63 certificate in an organisation?
- The issuance of the certificate should be the individual who has been authorised to do so and is the user of the device which is regularly used to access the electronic record. Furthermore, the signatory of the Section 63 must ensure following:Possess legal ownership or regulatory access of the device.
- Must be able to certify that the computer system and the electronic record are secure, and it is certifying the integrity of the records.
What are the dangers of using chats in an uncertified manner?
Risks associated with the filing and using of uncertified chat are as follows:
- Inadmissibility of the evidence before the relevant authority;
- Weakens the of defence of the employer;
- Delay in adjudication on account of procedural irregularity.
What is the legal way of employers gathering WhatsApp and Slack evidence when investigating a workplace?
The collection of digital evidence should take place in a legal, proportionate and transparent manner. Any collection of evidence which does not conform to such requirements may be invalidated before the court of law.
Do employers have access to company-owned device chats?
Yes, however the access to such devices is subject to the internal practices, policies, and ownership of equipment.Policies must specifically provide the following clauses:
- Monitoring rights.
- Data retention provisions.
- Investigation mechanism and rights of employer.
What in case the conversations run on the personal device of an employee?
The access to individual devices and the documentary may be subject to the constitutional and statutory issues. It is also governed by the policies of the employer.
The employer may conduct the following to procure the personal data of the employee:
- Ask the employee to voluntarily to produce the documentary evidence.
- Request the server manager to provide WhatsApp and Slack chat.
- Utilise the witness testimony.
Is consent of employees a prerequisite to chat data access?
Under the Digital Personal Data Protection Act of 2023 regime, the following is required prior to processing of the employee’s data:
- The explicit consent of the employee consenting to the processing.
- Processing concerning employment could be under the legitimate use.
What is the implication of Digital Personal Data Protection Act, 2023 on evidence collection?
The DPDP Act requires that any collection and processing of personal data must comply with the following obligations:
- Purpose which falls under the legitimate use.
- Data minimisation by collection of personal data which is mandatory for its services and goods.
- Maintaining of reasonable security measures.
- Destruction of the personal data if the data principal uses its rights.
The employer should ensure the obligation are complied with:
- It is mandatory that consent is acquired for processing of the personal data.
- Personal data is limited to as and when required criteria.
- Access logs are maintained.
How should WhatsApp and Slack evidence be presented in a domestic inquiry?
Presenting of evidence in a domestic inquiry must satisfy the requirements of doctrine of natural justice.
How to ensure compliance with principles of natural justice?
Employers must conduct the following activities to stay compliant with the principle of natural justice:
- Supply copies of chat records which are being relied upon in the internal inquiry.
- Allow cross-examination of such digital records.
- Permit raising of objections and Record objections.
Failure to comply with the natural justice weakens the stance of the employer and they may render the inquiry defective.
How should authenticity objections be handled?
Inquiry officers should:
- Record objections.
- Permit expert to authenticate such evidence.
- Evaluate device used to access such personal data.
- Collaborate such digital record with other evidence.
What privacy and data protection risks arise when using chat evidence in internal inquiries?
Digital records which are used for the purpose of internal investigations if containing personal data requires the consent of the data principal prior to any processing of such information under the DPDP law
Does the DPDP Act restrict processing of employee communications?
Yes, the DPDP act mandates that the employee must be served with a data protection notice indcating the purpose for which the data is being collected and processed.
Under the DPDP Act, the processing must be conducted in the following manner:
- Must be lawful.
- Serve a specific purpose for specific goods and services.
What qualifies as “legitimate use” in employment investigations?
Legitimate use of the digital record in an employment investigation may include:
- Prevention of misconduct.
- Detection of fraud in the establishment.
- Regulatory compliance.
Are cross-border Slack servers legally relevant?
Yes, the cross board slack servers are admissible in the court of law. However, such serves are subject to greater regulatory compliance which includes concerns of authentication, data localisation and security measures.
How long can such evidence be retained?
Retention of such data is subject to applicable laws and policies and must align with:
- Timeline prescribed under the internal policies.
- Extension for retention of evidence due to pending litigation.
- Statutory provisions governing the retention periods.
Can WhatsApp or Slack evidence alone justify termination of employment?
Yes, while a well authenticated and collaborate list of chat acts as strong evidence for determining termination of services. The digital evidence by itself will not constitute a substantial evidence and may create ground for judicial scrutiny.
When do chats constitute proof of misconduct?
The WhatsApp and Slack Chats acts as evidence for misconduct if the contents proves the following:
- Harassment.
- Threats.
- Fraud.
- Confidentiality breaches.
- Collusion.
The chat must establish the intent of the other side to be relevant for internal inquiry.
Is corroboration required under labour jurisprudence?
Corroboration of evidence is not mandatory in nature but is advised on the following grounds:
- It provides consistency and pattern which provides the evidence proof to other evidence and arguments.
- If such evidence displays intent to admission of guilt, it allows one to shift the burden of proof in the proceedings.
What have Indian courts held regarding termination based on digital evidence?
The Indian judicial system while determining cases pertaining to termination of employment have undertaken the following:
- Upheld termination where digital evidence submitted before the court followed due process and was compliant with the law.
- Set aside termination on account of procedural lapse.Reinstated employees where authenticity was doubtful.
FAQ: WhatsApp and Slack Evidence in Internal Inquiries
Are WhatsApp screenshots sufficient proof in an internal inquiry?
No, the WhatsApp chat constitutes as secondary evidence and must be collaborated with other evidence to improve the burden of proof of either of the party. Furthermore, while determined based on internal policies certain entities may also require Section 63 from the employee.
Can private WhatsApp group chats between employees be used against them?
Yes, the private communications can be used to support one’s defence if such communication has a nexus with the subject matter. However, the use of such communication shall be subject to company’s internal policy, thereby the same shall directly impact the admissibility and legality of such communications.Is it illegal to access Slack messages without informing the employee?
While the monitoring of the Slack message without informing the employee is not per se illegal if the Slack platform is employer-controlled and monitoring rights are clearly disclosed through internal policy. However, if the slack message constitutes persona data under the Digital Personal Data Protection Act, then the employer is mandated to seek consent of employee prior to collection of data.
Can an employee refuse to share their phone during a workplace investigation?
An employee may refuse to surrender its personal device as the same is protected under applicable laws. However, if such device is company provided then the employee may be compelled to provide access to the same based on the internal policies.
What happens if a Section 63 certificate is defective or missing?
While the lack of Section 63 certificate renders the electronic evidence as inadmissible, the Hon’ble Authority may waive off the requirement to file such certificate on a case-to-case basis.
Should companies update their HR policies to cover workplace chat platforms?
Yes, the amendment to ensure such coverage in the internal inquiry strengthens the employer’s defence during the internal inquiry. Provided that the Employers must comply with the provisions of the Digital Personal Data Protection Act, 2023.
Conclusion
The admissibility of the WhatsApp and Slack evidence in internal inquiries is subject to the internal policies and practices being followed in an organisation. To ensure that such evidence is permissible in the proceeding must ensure that it is collected in a legally permissible manner.Internal disciplinary proceedings is not a judicial proceeding is largely based on the internal practices. However, the proceeding is anticipated to be compliant with the concept of natural justice to be deemed relevant before the authorities. Such proceedings are not bound by the statutory obligation of the Bharatiya Sakshya Adhiniyam, 2023. However, it is best suggested that the policy and framework are prepared in a manner that provides evidence which is compliant with the Bharatiya Sakshya Adhiniyam, 2023 to ensure such evidence which are relied upon in the internal proceedings are admissible in the court of law.Beyond the above, the Digital Personal Data Protection Act, 2023 mandates that the consent of the person whose personal data is being processed must be informed. To this extent if the organisation fails to obtain the consent of the employee for the processing, then the employer is subject to penalty under the DPDP Act.The governing principle is which are applicable on the WhatsApp or Slack communications as evidence are:
- lawfully obtained,
- Authenticated records;
- Section 63 certificate (if filed before court), and
- Following principle of natural justice.
While the hon’ble courts may not interfere with internal proceedings and the procedure applicable to it. Having a fair and legally sound proceeding ensures that the evidence are admissible event in the court of law.
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