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?
Electronic archiving in the UAE is regulated by Federal Law No. (1) of 2006, On Electronic Commerce and Transactions. Under this Law, documents, records and information can be retained electronically as long as certain conditions are met (Art. 5).
Federal Law No. 36 of 2006, which amended the Law of Evidence in Civil and Commercial Transactions promulgated by Federal Law No. 10 of 1992 (Law of Evidence) states that electronic writing, communication, records and documents shall have the same force and effect as accorded to official and traditional writing and communication if the electronic document complies with the conditions and provisions of the Law. The value of an electronic record in a legal proceeding is assessed based on the reliability of the (Federal Law No. (1) of 2006, Art. 10):
- manner of the operation(s) performed (i.e., executing, entering, generating, processing, storing, presenting or communicating);
- manner in which the integrity of the information was maintained;
- source of information, if identifiable; and, the
- manner in which the originator of the record was identified.
Other relevant factors may also be considered.
There are several onshore UAE data retention requirements. Under UAE Law No. 8 of 1980, as amended (the Labour Law), an employer who employs 5 or more employees must retain the following personnel records:
- a file for each employee with the following information: employee name; job; age; nationality; place of residence; marital status; dates of employment; remuneration and any adjustments; disciplinary sanctions; occupational injuries and diseases; date and reason for employment termination; and,
- a leave card for each employee detailing annual leave, sick leave and other leave.
Employers with 15 or more employees, must keep the following additional records:
- a remuneration register detailing employee names, dates of employment and amount of wages (daily, weekly or monthly), benefits, commission, work days and termination date;
- an occupational injuries register, which includes details on any occupational accidents/diseases;
- basic work rules detailing timing of daily work, weekly rest, official holidays, health and safety rules; and,
- disciplinary rules setting out disciplinary procedure and sanctions.
The Labour Law requires that these records are maintained "in each main establishment, or branches or locality in which work is carried out" which implies a requirement to maintain hard copy records (although note that there is no prohibition on maintaining electronic versions). In practice, Ministry of Labour inspectors often request to review hard copies of employee records during periodic spot checks to ensure compliance with the Labour Law.
Are there any legal requirements for electronic archiving systems (EAS)?
In addition to the above requirements, per Article 5 of Federal Law No. (1) of 2006, On Electronic Commerce and Transactions:
- an electronic record should be retained in the format in which it was generated/sent/ received or, in a format which can be demonstrated to accurately represent the information generated/sent/received;
- the information in the record remains accessible for future reference; and,
- any information that is retained enables the identification of the origin and destination of the electronic record along with the date and time it was sent/received.