Legal Framework for Electronic Archiving
Although some countries require certain types of documents to be kept and archived in their original paper form, for most categories of documents, including HR-related records, there is no such requirement, and it is generally acceptable to use electronic versions of paper records (i.e., scanned copies of paper originals) during most government agencies’ inspections and audits or in court proceedings.
The evidential or probative value of electronic versions of paper records may be more easily challenged before a court than it would be for the originals. This is mainly because the original records could be tampered with or changed before being scanned, and, unless proper technology has been used (e.g., encryption and timestamping), it may not be easy to detect such changes from a scanned copy. In specific situations, it may be good practice for employers to retain archives of paper originals in the event such originals would be requested by a specific investigator, auditor, judge or authority.
Are electronic scanned copies of paper originals legally valid?
There is no specific legal framework for electronic archiving in Switzerland but rules of several areas of law are applicable, depending on the concerned documents which are archived. In general, regulations regarding archiving documents depend on the content of a document and not on the form of the archiving (physical or electronic archiving).
In general, an electronic scanned copy of a paper original is legally valid. However, for purposes of proof in court, it is good practice to keep a paper original of all signed employment contracts and other written agreements until expiration of their retention periods. At a minimum, in cases where the law requires written form of a contract to be valid, it is recommended to maintain an archive of the paper original, particularly for:
- employment contracts containing a post-contractual non-competition clause;
- apprenticeship contracts, and contracts with travelling salesmen (Art. 347 f. Swiss Code of Obligation (CO)).
Are there any legal requirements for electronic archiving systems (EAS)?
According to Art. 168 (1) (b) and Art. 177 of the Swiss Civil Procedure Code (CPC), facts may be proven by physical as well as electronic documents. For an electronic archive to have a similar probative value as the paper original, it needs to meet the requirements below. Swiss commercial law sets requirements for due archiving of business records under Art. 957 CO in connection with the Ordinance on Business Records (Geschäftsbücherverordnung (GeBüV)) which are based on the following principles:
- A sound accounting practice and the correct processing of data is required (Art. 2 (2) GeBüV).
- The system must ensure the integrity and genuineness of the archives, meaning it must be impossible to alter them unnoticeably (Art. 3 GeBüV).
- A continuously updated documentation on the organization, responsibilities, processes as well as the infrastructure, including hardware and software, must be established (Art. 4 GeBüV).
- The books are to be archived with due diligence, protecting them of any harmful influences (Art. 5 GeBüV).
- The archives need to be separated from the current books, however, both need to be available in due time (Art 6 and 7 GeBüV)
- Every access to the archives needs to be documented (Art. 8 GeBüV).
- The validity of media used to store business records depends on whether it is changeable. Unchangeable media (CDs, WORMs, etc.) is always admissible. Changeable media is only admissible if technical procedures ensure the integrity of the data (e.g. using an electronic signatures), reliably verify the time of storage (timestamping), and procedures for use of the media is documented and stored (Art. 9 (1) GeBüV).
Note that, as opposed to other countries (such as some civil law countries), an archiving system in Switzerland does not need to be (and cannot be) approved or certified by any public authority.
HR Best Practices: When the above electronic archiving requirements are met, an electronic copy of a paper original will have a similar value as the paper original itself; which may therefore offer the option to the employer to destroy its original paper documents. However, in trial, most Swiss judges will still consider that a paper original will have a higher probative value than an electronic scanned copy, even when created according to the above requirements.
Led by PeopleDoc’s Chief Legal & Compliance Officer, the HR Compliance Assist team relies on a network of internal and external compliance experts and lawyers, including the global law firm Morgan Lewis, to provide clients with best practices and recommendations on topics such as HR document retention, employee data privacy, and HR electronic records. HR Compliance Assist also provides local compliance monitoring and alert services in select countries where PeopleDoc’s customers have employees. HR Compliance Assist is a service exclusively available to PeopleDoc customers.