Workplace Investigations
Contributing Editors
Workplace investigations are growing in number, size and complexity. Employers are under greater scrutiny as of the importance of ESG rises. Regulated industries such as finance, healthcare and legal face additional hurdles, but public scrutiny of businesses and how they treat their people across the board has never been higher. Conducting a fair and thorough workplace investigation is therefore critical to the optimal operation, governance and legal exposure of every business.
IEL’s Guide to Workplace Investigations examines key issues that organisations need to consider as they initiate, conduct and conclude investigations in 29 major jurisdictions around the world.
Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.
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01. What legislation, guidance and/or policies govern a workplace investigation?
01. What legislation, guidance and/or policies govern a workplace investigation?
Brazil
Brazil
- at CGM
- at CGM
There is no specific law governing workplace investigations in Brazil, but Law 14.457/2022 states that companies must have rules that relate to sexual and other forms of harassment in their internal policies, address the rules for receiving and processing accusations, assess the facts, and discipline any individuals directly and indirectly involved in acts of sexual harassment or violence.
If the investigation has any connection with anticorruption matters, the investigation procedure must comply with Law 12846/2013 (Brazilian Anticorruption Act) and Decree 8420/2015.
As a result, Brazilian employers usually follow the rules determined by internal corporate policies, which often result from international regulations and principles that differ from the Brazilian ones, which inadvertently expose the Brazilian subsidiary to liability. The answers below will highlight common examples of this, when appropriate.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
A workplace investigation is usually governed by the employer’s internal grievance policy or contractual guidelines found in the employment contract or employee handbook. In the absence of the same, the default governing regime is as set out by the Ministry of Manpower (MOM) and the Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) in its guidelines and advisories, which include:
- the Tripartite Advisory on Managing Workplace Harassment;
- the TAFEP Grievance Handling Handbook; and
- the Tripartite Guidelines on Fair Employment Practices.
In addition, section 14(1) of the Employment Act 1968 provides that an employer is required to conduct “due inquiry” before dismissing an employee covered under the Employment Act 1968 without notice for misconduct. The Singapore Courts take the view that “due inquiry” suggests some sort of process in which the employee concerned is informed about the allegations and the evidence against him or her so that he or she has an opportunity to defend him or herself with or without evidence during the investigation process.
Further, there are numerous cases where the Singapore High Court has alluded to or implicitly accepted the application of the implied term of mutual trust and confidence in employment contracts that would oblige the employer to act reasonably and fairly during the investigation, even though it is worth noting that the Singapore Court of Appeal has stated that the status of the implied term of mutual trust and confidence has not been settled in Singapore and that the Appellate Division of the Singapore High Court has stated that “[i]t remains an open question for the Court of Appeal to resolve in a more appropriate case, ideally with facts capable of bearing out a claim based directly on the existence of the implied term” (see [81]-[82] of Dong Wei v Shell Eastern Trading (Pte) Ltd and another [2022] SGHC(A) 8).
Hence, any references to the application of the implied term of mutual trust and confidence in Singapore in this article must be read in light of the above.
The current position is expected to change in the second half of 2024, with the passing of Singapore’s first workplace fairness law, the Workplace Fairness Legislation. On 4 August 2023, the Singapore government announced that it has accepted the final set of recommendations by the Tripartite Committee on Workplace Fairness in respect of the upcoming Workplace Fairness Legislation. The Tripartite Committee on Workplace Fairness recommended, among other things, that employers are required to put grievance-handling processes in place. It is therefore expected that the Workplace Fairness Legislation may contain requirements on how and when a workplace investigation should be conducted.
This article sets out the current position, before the Workplace Fairness Legislation was enacted, and will be updated when appropriate.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Workplace investigations in Sweden are governed by several rules and regulations. Listed below are the central legislation and regulations that govern a workplace investigation related to alleged employee misconduct.
- The Swedish Discrimination Act (2008:567).
- The Swedish Work Environment Act (1977:1160), which is complemented by the Swedish Work Environment Authority’s other statutes.[1]
- The Swedish Whistleblowing Act (2021:890).
If a workplace investigation has been initiated after the receipt of a report filed through a reporting channel established under the Swedish Whistleblowing Act, that law applies provided that the report has been filed by a person who may report under the Act and provided that the subject of the report falls under the material scope of the Act. The Swedish Whistleblowing Act implements Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law and has been given a wide material scope in Sweden. The Swedish Whistleblowing Act may apply if the reported irregularity concerns breaches of certain EU laws or if the reported irregularity is of public interest.
In addition to the regulations mentioned above, certain data protection legislation may affect workplace investigations by restricting what personal data may be processed. Such data protection legislation includes the following:
- Regulation (EU) 2016/679 on the protection of natural persons concerning the processing of personal data and the free movement of such data (the GDPR);
- the Swedish Supplementary Data Protection Act (2018:218);
- the Swedish Supplementary Data Protection Regulation (2018:219);
- Regulation DIFS:2018:2 on the processing of personal data relating to criminal convictions or offences. This regulation governs the processing of personal data relating to criminal convictions or suspected criminal offences in internal workplace investigations that are not governed by the Swedish Whistleblowing Act.[2]
The above-mentioned legislation and regulations may overlap in many aspects and it is therefore important before starting an investigation, as well as during an investigation, to assess which rules and regulations apply to the situation at hand. Another aspect of this is that many issues that can arise during an investigation are not regulated by law or other legislation. If the investigation is a non-whistleblowing investigation there are limited rules on exactly how and by whom the investigation should be carried out.
A Swedish law firm that undertakes a workplace investigation also has to adhere to the Swedish Bar Association’s Code of Conduct. The Code of Conduct includes additional considerations, mainly ethical, which will not be addressed in this submission. Furthermore, this submission will not focus on investigations following an employee’s possible misappropriation of proprietary information or breach of the Swedish Trade Secrets Act (2018:558). Investigations into such irregularities are often conducted to gather evidence and these investigations include the same or similar investigative measures used in other investigations, such as interviews with employees and IT-forensic searches, but also infringement investigations carried out by the authorities or other measures by the police.
[1] Mainly Systematic Work Environment Management (AFS 2001:1), Organisational and Social Work Environment (AFS 2015:4) and Violence and Menaces in the Working Environment (AFS 1993:2)
[2] Under Section 2 item 4 of DIFS 2018:2, personal data relating to criminal convictions or suspected criminal offences may only be processed if the personal data concerns serious misconduct, such as bribery, corruption, financial fraud or serious threats to the environment, health and safety, by an individual who is in a leading position or who is considered key personnel within the company. The processing of personal data received in a report or collected during an investigation governed by the Swedish Whistleblowing Act is instead governed by the Swedish Whistleblowing Act, which complements the GDPR and the supplementing Swedish act and regulation stated in item (ii) and (iii) above.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
There is no specific legal regulation for internal investigations in Switzerland. The legal framework is derived from general rules such as the employer's duty of care, the employee's duty of loyalty and the employee's data protection rights. Depending on the context of the investigation, additional legal provisions may apply; for instance, additional provisions of the Swiss Federal Act on Data Protection or the Swiss Criminal Code.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
In the United States, any combination of legislation at the federal, state and local level, as well as judicial opinions and regulatory guidance interpreting those statutes, may impose obligations on relevant employers to undertake a timely internal investigation in response to complaints of workplace misconduct and to promptly implement remedial measures, where appropriate.
An employer’s written policies often also set forth the company’s expectations for how its employees, partners, vendors, consultants or other third parties will conduct themselves in carrying out the business of the company, and these policies may include protocols setting forth the parameters for an investigation in the event of potential non-compliance. Such investigatory roadmaps are often described in, for example, employee handbooks or a company’s policy against discrimination and harassment.
Due to the patchwork nature of employment and related laws, it is not possible to cover every investigation scenario or related legislation in this guide. Employers should instead consult with experienced employment attorneys in their state to ensure compliance with the applicable legal and regulatory regimes.
02. How is a workplace investigation usually commenced?
02. How is a workplace investigation usually commenced?
Brazil
Brazil
- at CGM
- at CGM
Workplace investigations usually commence on the receipt of an allegation, which can be presented orally or in writing to an assigned member of the company (usually, within the HR, Compliance or Legal Departments, or to a direct supervisor) or via an external channel, as determined by the company’s policy.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
A workplace investigation usually commences with the receipt of feedback, a complaint or a grievance, by named or anonymous persons, in respect of a work-related matter or event, or the conduct of an employee.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
An investigation can be initiated in several ways. It is usually as a result of whistleblowing or a report on work environment deficiencies, or through other channels (eg, HR, the police, media coverage).
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Internal investigations are usually initiated after reports about possible violations of the employer's code of conduct, applicable laws or regulations have been submitted by employees to their superiors, the human resources department or designated internal reporting systems such as hotlines (including whistleblowing hotlines).
For an internal investigation to be initiated, there must be a reasonable suspicion (grounds).[1] If no such grounds exist, the employer must ask the informant for further or more specific information. If no grounds for reasonable suspicion exists, the case must be closed. If grounds for reasonable suspicion exist, the appropriate investigative steps can be initiated by a formal investigation request from the company management.[2]
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
A workplace investigation is often, although not always, prompted by a complaint of workplace misconduct, usually made directly by the employee who was harmed by the conduct, a third party who witnessed the conduct, or a manager or supervisor who was made aware of the issue and has reporting obligations as a result of his or her role in the organisation.
It is best practice – and often a legal requirement depending on the applicable state law – for companies to clearly outline a complaint process in their policies and to provide employees who experience, have knowledge of, or witness incidents they believe to violate the company’s policies with one or more options for making a report. Although the specific complaint procedure may vary depending on the size of the organisation, the nature of the business and the type of complaint at issue, many companies provide for (or require) making a report through one of the following channels:
- a company-managed hotline or online equivalent;
- human resources;
- an affected employee’s supervisor or manager; or
- a member of the legal or compliance department.
03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)?
03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)?
Brazil
Brazil
- at CGM
- at CGM
Yes, an employee can be suspended during or before a workplace investigation. However, suspending an employee is not a legal requirement in Brazil. It is also not standard business practice and entails legal risk, as detailed below.
While internal policies in line with a company’s global investigation approach may determine whether investigated employees are suspended during an investigation, the suspension of an accused employee is not recommended. The only exception is when the accused employee, upon becoming aware of the existence of the investigation, poses a clear and imminent risk of physical danger to other employees or interfering with the investigation.
The suspension of an employee during an investigation makes it difficult for the company to keep the investigation confidential, because the absence of the investigated employee will have to be explained to his or her colleagues and business contacts. As a result, the investigated employee may be exposed to the stigma of being associated with potential misconduct.
Even if the accusation is confirmed and the individual is terminated with cause, the employer cannot disclose the reason for the termination or that the contract was terminated for a cause or violation in the employee’s employment records. Also, if the employer shares such information with prospective employers they may be liable for damages.
Termination for cause on the grounds of dishonest conduct, if not upheld by the labour court, usually leads to liability for damages to the former employee due to the accusation and the stigma associated with it.
Therefore, if the company decides to suspend the employee during the investigation and terminate his or her employment at the end of the investigation, the suspension will be associated with wrongdoing, and the individual will have grounds to claim damages for the association between the termination, the investigation and wrongdoing, which will likely be presumed by a labour court (damage in re ipsa).
On the other hand, if the accusation is deemed groundless, the connection between the employee and potential wrongdoing resulting from his or her suspension can be used as grounds for damages because of the resulting environment at the workplace or the development of mental health conditions such as depression or anxiety by the investigated employee due to the investigation and uncertainty about the negative effect of it on his or her reputation.
Because suspension during an investigation is not a disciplinary measure, if the company decides to suspend, the employee’s salary cannot be affected. Also, the suspension period must be as short as possible, and can in no circumstance be longer than 30 days. If it exceeds 30 days, it would trigger termination for cause by the company, which increases the amount of statutory severance due to the employee.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
Yes. Section 14(1) read with 14(8) of the Employment Act 1968 provides that an employee can be suspended during a workplace investigation
However, pursuant to section 14(8) of the Employment Act 1968, the employer:
- may suspend the employee from work for:
- a period not exceeding one week; or
- such longer period as the Commissioner for Labour may determine on an application by the employer; but
- must pay the employee at least half the employee’s salary during the period the employee is suspended from work.
Section 14(9) of the Employment Act 1968 further states that if the inquiry does not disclose any misconduct on the employee’s part, the employer must immediately restore to the employee the full amount of the withheld salary.
In addition to the above legislative requirements, the company is required to also comply with its policies relating to such suspensions.
In terms of the threshold to be crossed before a suspension can take place, the Singapore Courts have highlighted that suspending an employee quickly as part of a “knee-jerk” reaction to an unclear or unspecific allegation with dubious credibility is arguably a breach of the implied term of mutual trust and confidence that exists in all employment relationships ([56] of Dong Wei v Shell Eastern Trading (Pte) Ltd and another [2021] SGHC 123). The employer would need to have proper and reasonable cause to suspend an employee for disciplinary purposes ([56(d)] of Cheah Peng Hock v Luzhou Bio-Chem Technology Ltd [2013] 2 SLR 577; [2013] SGHC 32), for example, where multiple credible sources claimed that they had been sexually harassed by an employee, and the employer had strong grounds to believe that if the employee was not suspended, the safety and wellbeing of the other employees in the organisation would be threatened.
In contrast, an employer is not entitled to suspend an employee during a workplace investigation where the employer has only received one complaint that has not been properly described or substantiated with sufficient details from an unverified or unreliable source against an employee who has a good track record with the organisation. This is especially so if the complaint is so unclear that further inquiries should be made before the allegation can be properly ascertained and characterised (see also [51] of Dong Wei v Shell Eastern Trading (Pte) Ltd and another [2021] SGHC 123).
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
In general, an employee in the private sector may be temporarily suspended for a short period with pay and other benefits during a workplace investigation. The room for suspension without pay is, by contrast, very limited. An applicable collective bargaining agreement may impose additional restrictions on the right to temporary suspend an employee. The suspension should be limited in time and only be in force during the investigation, but can be repeated for (multiple) additional short periods if necessary to conclude the investigation. An assessment needs to be made on a case-by-case basis as suspension in some cases may be considered unlawful. If not executed with sufficient consideration of the employee’s interests, it may be considered a constructive dismissal or a breach of the employer’s work environment obligations. If the employee is unionised, trade unions sometimes request that the employer initiates consultations as part of a decision to suspend an employee.
In the public sector, the right to suspension is limited. There are also special regulations regarding the suspension of certain employees, for example, employees who are employed as permanent judges.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
It is possible to suspend an employee during a workplace investigation.[1] While there are no limits on duration, the employee will remain entitled to full pay during this time.
[1] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 181.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
Yes. An employer may suspend the subject of an internal investigation with full pay pending the outcome of an investigation. However, this measure should be used sparingly, for example in cases where an employee has been accused of gross misconduct or where it is the only means of separating the alleged victim of harassment from the accused to prevent continued harassment. As an alternative means of separating the victim from the accused, an employer can consider interim measures such as a schedule change, transfer or leave of absence for the alleged victim with his or her consent (employers should take care not to take any action that could be perceived as retaliatory against the complainant – even if well-intentioned – including involuntarily transferring him or her or forcing a leave of absence).
Where an employer does determine that suspending the subject of an investigation is warranted while the company carries out its investigation, it should provide him or her with a written statement briefly outlining the reason for the suspension and the estimated date the employee will be advised of the investigation outcome and his or her final employment status.
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
Brazil
Brazil
- at CGM
- at CGM
There is no statutory rule, and therefore the investigator can be chosen by the company.
In sensitive matters, it is recommended that attorneys undertake the investigation due to legal privilege. Engaging external lawyers increases the confidence of witnesses and parties in the independence and lack of bias of the investigation process, especially when the allegations involve senior employees.
Additionally, attorneys are trained to collect information based on legal thresholds that apply to the allegations, allowing the decision-makers to understand the events as they would be posed before a labour judge or a prosecutor, and enabling them to clearly assess the legal risk involved in the situation.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
While there are no prescribed minimum qualifications or criteria that need to be met for any person conducting a workplace investigation, the person handling employee grievances should be someone who:
- has been authorised and empowered to do so by the employer;
- is not in a position of actual or potential conflict; and
- is independent and impartial.
The grievance handler should be familiar with the organisation’s investigative procedure, have attended the relevant training to ensure full compliance with the same; and have a good understanding of the expectations and norms set out by the Tripartite Guidelines on Fair Employment Practices.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
If the workplace investigation falls under the Swedish Whistleblowing Act, the investigation has to be conducted by independent and autonomous persons or entities designated under the Swedish Whistleblowing Act as competent to investigate reports.
If the workplace investigation is not governed by the Swedish Whistleblowing Act, there are no minimum qualification requirements. When appointing an investigator, one should consider who would be most suitable in the given situation. For example, it may in some situations be more suitable to have an external investigator to ensure impartiality.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The examinations can be carried out internally by designated internal employees, by external specialists, or by a combination thereof. The addition of external advisors is particularly recommended if the allegations are against an employee of a high hierarchical level[1], if the allegations concerned are quite substantive and, in any case, where an increased degree of independence is sought.
[1] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 18.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
While every internal investigation should be carried out promptly, thoroughly and in a well-documented manner, employers should appoint one individual or team of individuals to oversee all complaints regardless of how they are received. Doing so helps to ensure that all allegations are documented, reviewed and assigned for investigation as consistently as practicable.
Once a complaint is received and recorded, the company should undertake an initial triage process to determine:
- the risk of the alleged misconduct from a reputational, operational and legal perspective;
- who is best suited to conduct an investigation based on the nature of the alleged misconduct and the perceived risk level (potential candidates may include members of human resources, legal or compliance departments, or outside counsel); and
- a plan for investigating the factual allegations raised in the complaint.
The appropriate investigator should be able to investigate objectively without bias (ie, the investigator cannot have a stake in the outcome, a personal relationship with the involved parties and the outcome of the investigation should not directly affect the investigator’s position within the organisation); has skills that include prior investigative knowledge and a working knowledge of employment laws; has strong interpersonal skills to build a rapport with the parties involved and to be perceived as neutral and fair; is detail-oriented; has the right temperament to conduct interviews; can be trusted to maintain confidentiality; is respected within the organisation; and can act as a credible witness.
At this triage stage, an employer may also wish to use the information collected from the complaint to proactively identify potential patterns or systemic issues at an individual, divisional or corporate level and react accordingly. For example, if a company receives a complaint against a supervisor for harassing conduct and that same individual has already been the subject of previous complaints, the company should consider whether it may be appropriate to engage outside counsel to carry out a new investigation to bring objectivity and lend credibility to the review – even if the prior complaints were not ultimately substantiated following thorough internal investigations. Similarly, the engagement of outside counsel is often appropriate where a complaint involves alleged misconduct on the part of a company’s senior management or board members.
05. Can the employee under investigation bring legal action to stop the investigation?
05. Can the employee under investigation bring legal action to stop the investigation?
Brazil
Brazil
- at CGM
- at CGM
Employees are not legally prohibited from bringing legal action, but because investigations are within an employer’s powers, a legal action to broadly stop an investigation (as opposed to an injunction to prevent a limited measure within an investigation, such as the review of private messages) would likely be deemed groundless.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
The employee under investigation is entitled to apply to the Court to stop the investigation. However, the employee bears the legal burden of showing that the employer has, for instance:
- failed to comply with the organisation’s grievance policy;
- committed a serious breach of natural justice; and/or
- breached the implied term of mutual trust and confidence when investigating the matter, and that such a breach will, unless remedied, cause such prejudice to the employee that it would be more just for the investigation to be stopped than to be allowed to continue.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
No. It should, however, be noted that the employee under investigation may claim a right to rectification under article 16 of the GDPR and its right to object to processing under article 21 of the GDPR. This may give the employee under investigation an undesirable opportunity to withhold evidence and obstruct or impede the investigation. The risk of these rights being exercised is, however, considered to be low.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The accused could theoretically request a court to stop the investigation, for instance, by arguing that there is no reason for the investigation and that the investigation infringes the employee's personality rights. However, if the employer can prove that there were grounds for reasonable suspicion and is conducting the investigation properly, it is unlikely that such a request would be successful.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
In general, private sector employees have considerably fewer rights vis-à-vis a company-led internal investigation than their public sector counterparts. This is because many US states are “at will” employment states, which means that, absent an employment contract that provides otherwise, an employee can be terminated for any reason not prohibited by statute or public policy. Depending on the specific circumstances, however, an employee who is the subject of an internal investigation could bring or threaten legal action according to contract or tort principles to stop an investigation. An employee may also challenge an investigation because it was conducted in violation of certain federal, state or foreign laws, for example, the use of polygraph tests in violation of the Employee Polygraph Protection Act or foreign data privacy laws.
06. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?
06. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?
Brazil
Brazil
- at CGM
- at CGM
Employees cannot be compelled to act as witnesses. Employers may have trouble enforcing internal policies stating that employees who refuse to participate in investigations will be disciplined (warned, suspended or have their contract terminated for cause), but can terminate their contract without cause.
There are no explicit legal protections for employees acting as witnesses, but it is common best practice to have witnesses’ identities protected to the extent necessary for the investigation, and to protect them from retaliation.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
Singapore law does not impose any statutory or legal obligation on an employee to act as a witness in the investigation. Accordingly, an employer does not have the power to compel its employees to act as witnesses in an investigation.
Notwithstanding this, an employer may require an employee to assist in investigations pursuant to specific contractual obligations in the employee’s terms of employment (as may be contained in the employment contract, employee handbook or the employer’s internal policies and procedures in dealing with the investigations, etc). Further, a request for an employee to provide evidence of an event that he or she knows of may reasonably be deemed to be a lawful and reasonable directive from an employer.
Consequently, an employee’s refusal to act as a witness may amount to an act of insubordination that may attract disciplinary action by the employer.
Employers requiring employees to act as witnesses in an investigation must ensure that they comply with the expectations and norms set out by the Tripartite Guidelines on Fair Employment Practices and the TAFEP Grievance Handling Handbook.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
In general, yes, employees in Sweden have a far-reaching duty of loyalty toward their employers. This includes, among other things, a duty to truthfully answer an employer’s questions and to inform the employer of events that may be of interest to the employer. An employee’s obligation to assist is, however, more limited when assistance would entail self-incrimination.
A person acting as a witness under an investigation governed by the Swedish Whistleblowing Act will be protected by confidentiality. Personal data and details that could reveal the identity of a witness may not be disclosed without authorisation.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Due to the employee's duty of loyalty towards the employer and the employer's right to give instructions to its employees, employees generally must take part in an ongoing investigation and comply with any summons for questioning if the employer demands this (article 321d, Swiss Code of Obligations). If the employees refuse to participate, they generally are in breach of their statutory duties, which may lead to measures such as a termination of employment.
The question of whether employees may refuse to testify if they would have to incriminate themselves is disputed in legal doctrine.[1] However, according to legal doctrine, a right to refuse to testify exists if criminal conduct regarding the questioned employee or a relative (article 168 et seq, Swiss Criminal Procedure Code) is involved, and it cannot be ruled out that the investigation documentation may later end up with the prosecuting authorities (ie, where employees have a right to refuse to testify in criminal proceedings, they cannot be forced to incriminate themselves by answering questions in an internal investigation).[2]
[1] Nicolas Facincani/Reto Sutter, Interne Untersuchungen: Rechte und Pflichten von Arbeitgebern und Angestellten, published on hrtoday.ch, last visited on 17 June 2022.
[2] Same opinion: Nicolas Facincani/Reto Sutter, Interne Untersuchungen: Rechte und Pflichten von Arbeitgebern und Angestellten, published on hrtoday.ch, last visited on 17 June 2022.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
Yes. The investigator is empowered to decide which witnesses should be interviewed as a part of the fact-gathering process. In addition to interviewing the complainant, the investigation should include individual interviews with other involved parties, including the subject of the complaint, as well as individuals who may have observed the alleged conduct or may have other relevant knowledge, including supervisors or other employees. Many companies’ code of conduct, employee handbook or similar policy set forth the requirement for current employees to cooperate fully in any investigation by the company or its external advisors and also provide that failure to do so could result in disciplinary action, up to and including termination.
In the absence of contractual protections, employees may have no legal right to refuse to submit to an interview, even if their answers tend to incriminate them. That being said, when acting as a witness in an internal investigation, a current employee is usually afforded similar legal protections as the subject of an investigation, including the right to oppose unreasonable intrusions into his or her privacy and unreasonable workplace searches. For example, certain state laws prohibit an employer from questioning an employee regarding issues that serve no business purpose.
07. What data protection or other regulations apply when gathering physical evidence?
07. What data protection or other regulations apply when gathering physical evidence?
Brazil
Brazil
- at CGM
- at CGM
The Brazilian General Data Protection Law (LGPD) does not have specific rules or principles that apply to internal investigations conducted within private organisations. Despite that, the general principles and obligations set forth by the LGPD apply to any processing of personal data carried out within the context of such investigations. As a result, the company must ensure the transparency of such processing activities through a privacy notice addressed to the data subjects; only process the personal data that is necessary for the investigation; define the lawful basis that applies to such processing activities (especially for sensitive data); and apply any other obligations established by the LGPD.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
The employer may collect the personal data of an individual without the individual’s consent or from a source other than the individual, where it is necessary for any investigation according to section 17(1) read with paragraph 4 of Part 3 of the Third Schedule of the Personal Data Protection Act 2012 (PDPA). Under section 2(1) of the PDPA, “investigation” means an investigation relating to:
- a breach of an agreement;
- a contravention of any written law, or any rule of professional conduct or other requirement imposed by any regulatory authority in the exercise of its powers under any written law; or
- a circumstance or conduct that may result in a remedy or relief being available under any law.
Under the Banking Act 1970, a bank and its officers cannot disclose customer information to third parties, subject to certain exceptions. An employer carrying out a workplace investigation does not fall within any of the exceptions.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
To the extent the gathering of physical evidence includes the processing of personal data, please see question 1.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The Swiss Federal Act on Data Protection applies to the gathering of evidence, in particular such collection must be lawful, transparent, reasonable and in good faith, and data security must be preserved.[1]
It can be derived from the duty to disclose and hand over benefits received and work produced (article 321b, Swiss Code of Obligations) as they belong to the employer.[2] The employer is, therefore, generally entitled to collect and process data connected with the end product of any work completely by an employee and associated with their business. However, it is prohibited by the Swiss Criminal Code to open a sealed document or consignment to gain knowledge of its contents without being authorised to do so (article 179 et seq, Swiss Criminal Code). Anyone who disseminates or makes use of information of which he or she has obtained knowledge by opening a sealed document or mailing not intended for him or her may become criminally liable (article 179 paragraph 1, Swiss Criminal Code).
It is advisable to state in internal regulations that the workplace might be searched as part of an internal investigation and in compliance with all applicable data protection rules if this is necessary as part of the investigation.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
Documents and instruments that set out a company’s policies (eg, employee handbooks, code of conduct or other written guidelines) often contain provisions regarding employee data and document collection, workplace searches, communication monitoring, privacy, and confidentiality. As discussed below, state and federal constitutional, statutory and common law – and in some cases foreign data privacy regimes – may provide additional protections to protect employees from an unwarranted or unreasonable invasion of privacy during an internal investigation.
08. Can the employer search employees’ possessions or files as part of an investigation?
08. Can the employer search employees’ possessions or files as part of an investigation?
Brazil
Brazil
- at CGM
- at CGM
No; employers are only generally allowed to search the work tools they provide to employees, such as company mobile phones, electronic files, and company email and other electronic communications. However, they may also request that employees turn over any company documents in their possession.
Searches of employees’ private possessions or files during an investigation can only occur with the verifiable consent of the employee.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
The employer is not allowed to search employees’ personal possessions or files as part of an investigation without the employee’s consent. However, such consent may be explicitly provided for in the terms of employment (as may be contained in the employment contract, employee handbook or the employer’s internal policies and procedures in dealing with the investigations, etc). The employer may, however, search the employees’ company email accounts and files if these are stored on the company’s internal systems or devices.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
An employer can search an employee’s personal possessions (eg, handbag, pockets and locker) if the employer has a legitimate interest in a search. This could, for example, include a reasonable suspicion of theft of employer property. Furthermore, an employer may search, but not continually monitor, an employee’s computer and email provided that it is in accordance with GDPR requirements. For the processing to be lawful under the GDPR, the employer has to establish a purpose and a legal basis for the processing of personal data. Furthermore, data subjects must have received information on the legal basis for and purpose of the processing of personal data beforehand. If the data subjects have not received such information, the employer’s right to process their data is limited. However, if the employer has reasonable grounds to believe that trade secrets or similar has been copied and stolen, no such requirements would typically apply.
Investigations into an employee's possessions may, under certain circumstances, also be carried out by the Swedish authorities.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The basic rule is that the employer may not search private data during internal investigations.
If there is a strong suspicion of criminal conduct on the part of the employee and a sufficiently strong justification exists, a search of private data may be justified.[1] The factual connection with the employment relationship is given, for example, in the case of a criminal act committed during working hours or using workplace infrastructure.[2]
[1] Claudia Fritsche, Interne Untersuchungen in der Schweiz: Ein Handbuch für regulierte Finanzinstitute und andere Unternehmen, Zürich/St. Gallen 2013, p. 168.
[2] Claudia Fritsche, Interne Untersuchungen in der Schweiz: Ein Handbuch für regulierte Finanzinstitute und andere Unternehmen, Zürich/St. Gallen 2013, p. 168 et seq.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
As there is no unified data protection regime, privacy protections stem from a patchwork of federal and state privacy laws which impose limits on the extent to which an employer can collect information from its employees in connection with an internal investigation. Whether specific conduct violates an employee’s rights is a very fact-specific inquiry requiring the application of relevant state laws and a regulatory regime.
In most circumstances, an employer is free to conduct searches of its workplace and computer systems in the course of investigating potential wrongdoing. Such searches are generally not protected by personal privacy laws because workspaces, computer systems and company-issued electronic devices are often considered company property. Many companies explicitly address this in written corporate policies and employment agreements. Employees who use their own electronic devices for work should be aware that work-related data stored on those devices is generally considered to belong to the employer (as a matter of best practice, employers should generally prohibit or at least advise employees against using personal devices for work and to maintain separate work devices, where possible).
These broad investigatory powers notwithstanding, the ability of an employer to conduct searches in furtherance of an internal investigation is not unlimited. For example, if an employer seeks to obtain or review work-related data from an employee’s personal device, the employer must be careful to exclude any personal data. Certain states also prohibit an employer from requiring an employee to disclose passwords or other credentials to his or her personal email and social networking accounts, but permit an employer to require employees to share the content of personal online accounts as necessary during an interview while investigating employee misconduct.
09. What additional considerations apply when the investigation involves whistleblowing?
09. What additional considerations apply when the investigation involves whistleblowing?
Brazil
Brazil
- at CGM
- at CGM
If the investigation involves matters within the scope of a specific whistleblowing policy, the policy rules should prevail against the general investigation rules if there is a conflict.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
Under the Prevention of Corruption Act 1960 and the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (CDSCA), in any civil or criminal proceeding, no witness is obliged to disclose the name or address of any informer, or disclose any information that might lead to his or her discovery concerning offences such as corruption, drug trafficking, and money laundering, save where:
- in any proceeding for the offence, the Court, after a full inquiry into the case, is of the opinion that the informer wilfully made, in his complaint, a material statement that he knew or believed to be false or did not believe to be true; or
- in any other proceeding, the court is of the opinion that justice cannot be fully done between the parties without the discovery of the informer.
In line with the above, employers should therefore keep the informer’s identity confidential upon receiving a complaint relating to corruption, drug trafficking, money laundering, and other serious offences prescribed in the second schedule of the CDSCA.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
If the Swedish Whistleblowing Act governs the investigation, additional considerations apply relating to who may investigate a reported irregularity (see question 4) and the duty of confidentiality and restrictions on access to and disclosure of personal data in investigations (see questions 6, 10 and 11), as well as the rights and protections of whistleblowers.
As regards the rights and protections of whistleblowers, the following can be noted. A person reporting in a reporting channel governed by the Swedish Whistleblowing Act is protected against retaliation and restrictive measures. Thus, companies are prohibited from preventing or trying to prevent a person from reporting, and retaliating against a person who reports. Furthermore, a reporting person will not be held liable for breach of confidentiality for collecting the reported information if the person had reasonable grounds to believe that it was necessary to submit the report to expose irregularities. Under the Swedish Whistleblowing Act, any person reporting irregularities in a reporting channel established under the Swedish Whistleblowing Act may also report irregularities to designated Swedish authorities.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
If an employee complains to his or her superiors about grievances or misconduct in the workplace and is subsequently dismissed, this may constitute an unlawful termination (article 336, Swiss Code of Obligations). However, the prerequisite for this is that the employee behaves in good faith, which is not the case if he or she is (partly) responsible for the grievance.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
Several federal, state, and local employment laws prohibit retaliation against employees who come forward with complaints or participate in corporate investigations. Employees who possess information regarding corporate misconduct may also be considered whistleblowers protected from retaliation under federal and state whistleblower laws, including but not limited to the Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the Consumer Financial Protection Act of 2010.
An employee generally does not need to show that he or she was terminated or demoted to bring a retaliation claim; other actions on the part of the employer may qualify if they could be seen to discourage employees from raising complaints. To protect against a potential retaliation claim, employers should make clear at the outset of an investigation that retaliation will not be tolerated and require the complaining employee (and potentially his or her manager) to bring any instances of retaliation to the investigator’s attention immediately.
10. What confidentiality obligations apply during an investigation?
10. What confidentiality obligations apply during an investigation?
Brazil
Brazil
- at CGM
- at CGM
Law 14.457/2022 states that companies must guarantee the anonymity of accusers. As a result, it is best practice that companies allow for anonymous submissions, or allow accusers to voluntarily disclose their identity while acknowledging that they agree that it will be kept confidential to the extent required by the investigation.
Also, companies should have internal rules stating that all parties involved in an investigation (accusing party, accused party, witnesses, investigators, and any other person that has any contact with the investigation) must keep the existence of the investigation and of the events related to the investigation confidential to the extent required by the investigation, and discipline any individuals that violate this.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
The existence and scope of any confidentiality obligations would generally depend on the specific terms of the employment contract, employee handbook or the employer’s internal policies and procedures in dealing with the investigations.
In the context of investigations into workplace harassment issues, the Tripartite Advisory on Managing Workplace Harassment issued by the MOM provides that the identities of the alleged harasser, affected persons and the informant should be protected unless the employer assesses that disclosure is necessary for safety reasons.
This may change with the enactment of the Workplace Fairness Legislation referred to in question 1. The Tripartite Committee on Workplace Fairness recommended, among other things, that employers should protect the confidentiality of the identity of persons who report workplace discrimination and harassment, where possible. As such, it is expected that the upcoming Workplace Fairness Legislation may impose certain confidentiality obligations on an employer during an investigation.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
If the Swedish Whistleblowing Act applies, the persons or entities handling the investigation have a duty of confidentiality and may not, without permission, disclose any information that could reveal the identity of the reporting person, any person subject to the report or any other person mentioned in the report or during the investigation of the report. Access to personal data is limited to designated competent entities or persons. Investigative material including personal data may not be shared with other persons or entities during the investigation. Once the investigation has reached actionable conclusions, investigative material may be shared with other persons or entities, such as HR or the police, provided that such sharing is necessary to take action on the outcome of the investigation. Investigative material may also be shared if it is necessary for the use of reports as evidence in legal proceedings or under the law or other regulations.
If the Swedish Whistleblowing Act does not apply, there are no particular confidentiality obligations for employers. Yet, an employer needs to consider what information is suitable to share during an investigation, how this is done and to whom it is shared. An employer must also respect employees’ privacy in line with what is generally considered good practice in the labour market. This means that an employer should be careful as to what sensitive and personal information is shared during an investigation. Furthermore, the spreading of damaging information (even if true) about an employee to a wider group may be a criminal offence under the Swedish Criminal Code.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Besides the employee's duty of performance (article 319, Swiss Code of Obligations), the employment relationship is defined by the employer's duty of care (article 328, Swiss Code of Obligations) and the employee's duty of loyalty (article 321a, Swiss Code of Obligations). Ancillary duties can be derived from the two duties, which are of importance for the confidentiality of an internal investigation.[1]
In principle, the employer must respect and protect the personality (including confidentiality and privacy) and integrity of the employee (article 328 paragraph 1, Swiss Code of Obligations) and take appropriate measures to protect the employee. Because of the danger of pre-judgment or damage to reputation as well as other adverse consequences, the employer must conduct an internal investigation discreetly and objectively. The limits of the duty of care are found in the legitimate self-interest of the employer.[2]
In return for the employer's duty of care, employees must comply with their duty of loyalty and safeguard the employer's legitimate interests. In connection with an internal investigation, employees must therefore keep the conduct of an investigation confidential. Additionally, employees must keep confidential and not disclose to any third party any facts that they have acquired in the course of the employment relationship, and which are neither obvious nor publicly accessible.[3]
[1] Wolfgang Portmann/Roger Rudolph, BSK OR, Art. 328 N 1 et seq.
[2]Claudia Fritsche, Interne Untersuchungen in der Schweiz, Ein Handbuch für Unternehmen mit besonderem Fokus auf Finanzinstitute, p. 202.
[3] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 133.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
Information arising from the initial complaint, interviews and records should be kept as confidential as practically possible while still permitting a thorough investigation. Although an employer must maintain confidentiality to the best of its ability, it is often not possible to keep confidential the identity of the complainant or all information gathered through the investigation process. An employer should therefore not promise absolute confidentiality to any party involved in an internal investigation, including the complainant. The investigator should instead explain at the outset to the complaining party and all individuals involved that information gathered will be maintained in confidence to the extent possible, but that some information may be revealed to the accused or potential witnesses on a need-to-know basis to conduct a thorough and effective investigation.
11. What information must the employee under investigation be given about the allegations against them?
11. What information must the employee under investigation be given about the allegations against them?
Brazil
Brazil
- at CGM
- at CGM
There is no obligation to inform an employee under investigation that this is the case, and it should not happen automatically.
While some policies require that the investigated employee be informed about the allegations against them at the beginning of the investigation, from a local perspective it is recommended that the accused employee be notified about the existence of the allegations if, after a reasonable review, there are elements that suggest that the accusation may be material.
In this context, the employee should be informed about the accusation and be allowed to confirm, deny, provide further context or justify each reported or identified event; offer evidence; and indicate persons or sources of information that could corroborate his or her defence. Information about the accusation must be focused on facts rather than on how the company obtained the information.
If the accusation is found to be groundless after initial review, involving the accused employee at the beginning of the process may have triggered unjust and unnecessary stress and a disruption in the employment relationship that may not be satisfactorily repaired by a determination that the accusation was void. This may result in a legal liability for the company or HR issues that could otherwise have been avoided.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
There is no specific list of information about the allegations against the employee under investigation that must be provided to the employee under investigation. However, the information provided to the employee must be sufficiently clear and specific so that the employee understands the case being made against him or her and can respond to it. The employee should also be made aware of the evidence against him or her and be given a reasonable opportunity to respond.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
According to article 14 of the GDPR, no information must be provided. The exemption in article 14.5(b) applies to the extent the obligation to provide such information is likely to render impossible or seriously impair the objectives of the processing of the personal data of the employee under investigation (ie, to diligently investigate the suspected irregularity).
If the Swedish Whistleblowing Act applies, information about where the personal data processed originates from may not be provided under article 14 of the GDPR, as the personal data must remain confidential subject to obligations under the Swedish Whistleblowing Act.
In addition to the above, an investigation should, to the extent possible and suitable, be characterised by the principles in ECHR (particularly articles 6 and 8). The employee under investigation should, among other things, be presented with sufficient information to safeguard his or her interests and be allowed to respond to the allegations. The investigation must also be compliant with the work environment responsibilities that the employer has concerning the involved parties (see questions 17 and 20).
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
As a result of the employer's duty of care (article 328, Swiss Code of Obligations), employees under investigation have certain procedural rights. These include, in principle, the right of the accused to be heard. In this context, the accused has the right to be informed at the beginning of the questioning about the subject of the investigation and at least the main allegations and they must be allowed to share their view and provide exculpatory evidence.[1] The employer, on the other hand, is not obliged to provide the employee with existing evidence, documents, etc, before the start of the questioning.[2]
Covert investigations in which employees are involved in informal or even private conversations to induce them to provide statements are not compatible with the data-processing principles of good faith and the requirement of recognisability, according to article 4 of the Swiss Federal Act on Data Protection.[3]
Also, rights to information arise from the Swiss Federal Act on Data Protection. In principle, the right to information (article 8, Swiss Federal Act on Data Protection) is linked to a corresponding request for information by the concerned person and the existence of data collection within the meaning of article 3 (lit. g), Swiss Federal Act on Data Protection. Insofar as the documents from the internal investigation recognisably relate to a specific person, there is in principle a right to information concerning these documents. Subject to certain conditions, the right to information may be denied, restricted or postponed by law (article 9 paragraph 1, Swiss Federal Act on Data Protection). For example, such documents and reports may also affect the confidentiality and protection interests of third parties, such as other employees. Based on the employer's duty of care (article 328, Swiss Code of Obligations), the employer is required to protect them by taking appropriate measures (eg, by making appropriate redactions before handing out copies of the respective documents (article 9 paragraph 1 (lit. b), Swiss Federal Act on Data Protection)).[4] Furthermore, the employer may refuse, restrict or defer the provision of information where the company’s interests override the employee’s, and not disclose personal data to third parties (article 9 paragraph 4, Swiss Federal Act on Data Protection). The right to information is also not subject to the statute of limitations, and individuals may waive their right to information in advance (article 8 paragraph 6, Swiss Federal Act on Data Protection). If there are corresponding requests, the employer must generally grant access, or provide a substantiated decision on the restriction of the right of access, within 30 days (article 8 paragraph 5, Swiss Federal Act on Data Protection and article 1 paragraph 4, Ordinance to the Federal Act on Data Protection).
[1] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.
[2] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.
[3] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.
[4] Claudia Götz Staehelin, Unternehmensinterne Untersuchungen, 2019, p. 37.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
The investigator must disclose to the employee under investigation the purpose of the investigation and, where the investigator is in-house or outside counsel, he or she should disclose that the company is the client.
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
Brazil
Brazil
- at CGM
- at CGM
Yes, the identity of the complainant, witnesses and sources of information for the investigation should be kept confidential.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
Such information can be kept confidential, subject to questions 10 and 11. However, disclosure may nevertheless be compelled in court or arbitration proceedings as well as by disclosure requests or directions by the police or statutory authorities, including the MOM.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
If the Swedish Whistleblowing Act applies, their identity must be kept confidential under the duty of confidentiality. If the Swedish Whistleblowing Act does not apply, their identity can to a large extent be kept confidential.
It can also be noted that a workplace investigation carried out in the public sector will often (eventually) become an official document, which means that the document can be requested by the public. There are, however, provisions on secrecy that may restrict the right to gain access to official documents. These provisions are found in the Public Access to Information and Secrecy Act (2009:400).
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
As mentioned under Question 10, the employer’s duty of care (article 328, Swiss Code of Obligations) also entails the employer’s duty to respect and protect the personality (including confidentiality and privacy) and integrity of employees (article 328 paragraph 1, Swiss Code of Obligations) and to take appropriate measures to protect them.
However, in combination with the right to be heard and the right to be informed regarding an investigation, the accused also has the right that incriminating evidence is presented to them throughout the investigation and that they can comment on it. For instance, this right includes disclosure of the persons accusing them and their concrete statements. Anonymisation or redaction of such statements is permissible if the interests of the persons incriminating the accused or the interests of the employer override the accused’ interests to be presented with the relevant documents or statements (see question 11; see also article 9 paragraphs 1 and 4, Swiss Federal Act on Data Protection). However, a careful assessment of interests is required, and these must be limited to what is necessary. In principle, a person accusing another person must take responsibility for their information and accept criticism from the person implicated by the information provided.[1]
[1] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
In general, except as provided above, depending on the seriousness of the complaint and investigation, the only persons who should be aware of it are the relevant individual in human resources or legal, and where different, the persons assigned to investigate. Although it may not be feasible to maintain absolute confidentiality in conducting an investigation depending on the nature of the allegations, investigators should exercise discretion at all times and, where possible, avoid identifying complainants, the subject of the investigation or witnesses by name where it is not necessary, and where doing so could be detrimental to the fact-finding process.
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
Brazil
Brazil
- at CGM
- at CGM
Yes, NDAs may be executed to reinforce the confidentiality obligations outlined in the company's policies and reinforced in interviews.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
Yes, NDAs can be used to keep the fact and substance of an investigation confidential. There are no express prohibitions against such NDAs under Singapore law. However, information or evidence covered by the NDA may still be discoverable in court or arbitration proceedings; and may also be subject to disclosure requests or directions by the police or statutory authorities, including the MOM.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
NDAs can be used for some investigations carried out in the private sector. However, under the Swedish Whistleblowing Act, a contract is void to the extent it retracts or restricts a person’s rights under the Swedish Whistleblowing Act. An NDA that restricts the right to report irregularities to authorities or the media would, therefore, typically be void.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In addition to the above-mentioned statutory confidentiality obligations, separate non-disclosure agreements can be signed. In an internal investigation, the employee should be expressly instructed to maintain confidentiality.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
This is a fact-specific inquiry that depends on the specific circumstances and laws of the relevant state. In general, NDAs are frowned upon but can be used to an extent to keep certain facts and the substance of an investigation confidential. NDAs can never prevent employees from assisting in official agency investigations, however. NDAs also cannot lawfully prohibit employees from officially reporting illegal conduct by their employer.
14. When does privilege attach to investigation materials?
14. When does privilege attach to investigation materials?
Brazil
Brazil
- at CGM
- at CGM
Privilege attaches to investigation materials when attorneys conduct interviews and take notes, and when they write reports and recommendations.
However, if other persons participate in an interview or write a report, and they are not attorneys, they can be required to testify about what they witnessed while participating in the interview or to discuss or disclose their investigation report.
For this reason, when starting an investigation, and depending on the matters to be investigated, it is important to determine whether it is convenient to allocate lawyers to certain roles to increase the company’s control of corporate confidentiality resulting from third-party involvement in the investigation.
Attorneys should also clearly state to participants of the investigation that they are attorneys representing the company and that their work papers fall under attorney-client privilege and will not be shared with them.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
Litigation privilege may attach to investigation materials if there was a reasonable prospect of litigation at the time of the creation of the materials, and the materials were created for the dominant purpose of a pending or contemplated litigation.
Legal advice privilege may attach to investigation materials if the materials were created to seek or obtain legal advice; or if the materials contain legal advice that is so embedded or has become such an integral part of the materials that the legal advice cannot be redacted from them. If the legal advice is separable from the materials, then only the parts of the materials containing legal advice will be protected by privilege.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Attorney-client privilege will apply to all communication and investigative material between a client and its law firm. Attorney-client privilege is, however, not without limitations. Regarding investigations into alleged employee misconduct, a law firm may have to report suspected money laundering to the authorities and under certain circumstances disclose information to the financial police.
Written material covered by attorney-client privilege generally may not be seized.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
As outlined above, all employees generally have the right to know whether and what personal data is being or has been processed about them (article 8 paragraph 1, Swiss Federal Act on Data Protection; article 328b, Swiss Code of Obligations).
The employer may refuse, restrict or postpone the disclosure or inspection of internal investigation documents if a legal statute so provides, if such action is necessary because of overriding third-party interests (article 9 paragraph 1, Swiss Federal Act on Data Protection) or if the request for information is manifestly unfounded or malicious. Furthermore, a restriction is possible if overriding the self-interests of the responsible company requires such a measure and it also does not disclose the personal data to third parties. The employer or responsible party must justify its decision (article 9 paragraph 5, Swiss Federal Act on Data Protection).[1]
The scope of the disclosure of information must, therefore, be determined by carefully weighing the interests of all parties involved in the internal investigation.
[1] Claudia M. Fritsche, Interne Untersuchungen in der Schweiz, Ein Handbuch für Unternehmen mit besonderem Fokus auf Finanzinstitute, p. 284 et seq.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
For legal privilege to apply, a primary purpose of the investigation should be to provide legal advice to the company, including concerning non-lawyers working at the counsel’s direction, and legal privilege likely will not apply to internal investigations performed as part of the ordinary course of business or where the investigation is required by a state or federal regulatory regime (eg, post-incident investigations of operations governed by OSHA’s Process Safety Management Standards). It is, therefore, important to contemporaneously document the scope and purpose of the investigation and not risk waiving privilege by sharing privileged materials with unnecessary third parties.
Whereas attorney-client privilege includes only communications between an attorney and the client, work-product privilege is broader and includes materials prepared or collected by persons other than the attorney with an eye towards impending litigation. Examples of potential work products produced by attorneys in the context of an investigation include investigative work plans, interview outlines, memoranda summarising witness interviews and investigative reports.
As a practical matter, employees should be aware that communications with other employees or colleagues regarding the investigation are not privileged regardless of whether the colleague is also involved in the investigation or represented by the same counsel. Even if an employee believes he or she is sharing attorney communications with other employees who need to know the attorney’s advice and who also have attorney-client privilege with the same counsel because he or she is involved or implicated in the investigation and also represented by company counsel, it is always prudent to refrain from sharing privileged information. If an attorney’s communication is shared beyond those who need to know, attorney-client privilege may be destroyed.
15. Does the employee under investigation have a right to be accompanied or have legal representation during the investigation?
15. Does the employee under investigation have a right to be accompanied or have legal representation during the investigation?
Brazil
Brazil
- at CGM
- at CGM
Legally, a minor or someone with limited mental capacity must be represented by his or her parents or legal guardian in a meeting at work. Besides that, employers are not legally required to allow any external person to accompany employees during investigations, since these are internal proceedings and, generally, employee participation should be voluntary and not subject to retaliation, including if the employee refuses to participate.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
This is dependent on the employee’s employment contract and the employer’s internal grievance policies and investigative processes. There is no free-standing legal entitlement for an employee to have legal representation. Employers may, at their discretion, consider allowing an employee to bring a colleague or to have legal representation if such a request is reasonable, such as to provide emotional support to the employee who may view the disciplinary hearing as an unnerving and stressful experience or so that the employee may be advised and informed of his or her legal rights in respect of the investigation commenced against him or her.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
The employee has no right to bring legal representation. However, the outcome of an investigation may lead to employment-related consequences, so it may be appropriate (depending on the situation) to offer the employee the opportunity to bring a union representative (if the employee is unionised) or a legal representative.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In the case of an employee involved in an internal investigation, a distinction must be made as to whether the employee is acting purely as an informant or whether there are conflicting interests between the company and the employee involved. If the employee is acting purely as an informant, the employee has, in principle, no right to be accompanied by their own legal representative.[1]
However, if there are conflicting interests between the company and the employee involved, when the employee is accused of any misconduct, the employee must be able to be accompanied by their own legal representative. For example, if the employee's conduct might potentially constitute a criminal offence, the involvement of a legal representative must be permitted.[2] Failure to allow an accused person to be accompanied by a legal representative during an internal investigation, even though the facts in question are relevant to criminal law, raises the question of the admissibility of statements made in a subsequent criminal proceeding. The principles of the Swiss Criminal Procedure Code cannot be undermined by alternatively collecting evidence in civil proceedings and thus circumventing the stricter rules applicable in criminal proceedings.[3]
In general, it is advisable to allow the involvement of a legal representative to increase the willingness of the employee involved to cooperate.
[1] Claudia Götz Staehelin, Unternehmensinterne Untersuchungen, 2019, p. 37.
[2] Simona Wantz/Sara Licci, Arbeitsvertragliche Rechte und Pflichten bei internen Untersuchungen, in: Jusletter 18 February 2019, N 59.
[3] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 392; Niklaus Ruckstuhl, BSK-StPO, Art. 158 StPO N 36.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
Employees generally have no automatic right to counsel in connection with an internal investigation, unless contractually provided for under the terms of an employment agreement. Nonetheless, employees may choose to retain counsel, particularly if they face liability.
16. If there is a works council or trade union, does it have any right to be informed or involved in the investigation?
16. If there is a works council or trade union, does it have any right to be informed or involved in the investigation?
Brazil
Brazil
- at CGM
- at CGM
No, there is no such right.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
An employee who is a member of a works council or trade union has the right to seek assistance from the works council or trade union representative (whichever is applicable) and have the works council or trade union involved in resolving the grievances.
For unionised companies, the grievance procedure and the role of the union representative are usually set out in the collective agreement entered into between the company and the works council or trade union. In some organisations, the employee handbook or grievance policy will also state when the trade union representative will be involved in the investigation process.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
No, but if the employee under investigation is unionised it is appropriate to inform the union about the investigation. If the employer chooses to take action against the employee during, or after, the investigation, the trade union generally needs to be consulted before any final decisions are made.
If the Swedish Whistleblowing Act applies, the employer is not authorised to inform a works council or trade union about the investigation, as it may be in violation of the duty of confidentiality (see question 10).
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In general, works councils and trade unions are not very common in Switzerland and there are no statutory rules that would provide a works council or trade union a right to be informed or involved in an ongoing internal investigation. However, respective obligations might be foreseen in an applicable collective bargaining agreement, internal regulations or similar.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
Employers generally have no obligation to inform employees of their right to union representation or to ask if they would like a union representative present during the interview. Union employees may insist, however, that a union representative attend any investigatory interview that could lead to the employee’s punishment, although the union representative may not interfere with the interview.
17. What other support can employees involved in the investigation be given?
17. What other support can employees involved in the investigation be given?
Brazil
Brazil
- at CGM
- at CGM
It is highly recommended that investigation interviews are conducted in the interviewed person’s native language, even if the individual speaks the language used for business within the company, to ensure that there is no miscommunication or loss of accuracy in the determination of the facts. Also, speaking their native tongue reduces the discomfort of participating in the interview and potential extra work due to post-interview correction or confirmation. Depending on the scope of the investigation, the company can have attorneys who speak both the individual’s language and the company’s business language conducting interviews.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
Employers may provide support, such as:
- offering counselling for its employees to encourage open discussions and communication on any issues that they may be facing or clarify any questions they may have in respect of the investigation process;
- reminding its employees of its zero-retaliation policy; and, if need be
- making the necessary work arrangement to minimise potential interaction that would further aggravate the conflict or situation between the employees involved.
Employers may also inform employees of the external resources available to them if they require any assistance in respect of the investigation provided by external parties such as TAFEP, the Singapore National Employers Federation, National Trade Union Congress, and Legal Aid Bureau.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
The employer is responsible for the work environment and must ensure that employees are not at risk of mental (or physical) illness due to an investigation. If an employee, in connection with an investigation, requires support or if risk of ill health is otherwise anticipated, the employer is obliged to assess the situation and provide said employee with sufficient support (eg, counselling or work adjustments).
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The employer does not generally need to provide specific support for employees that are subject to an internal investigation. The employer may, however, allow concerned employees to be accompanied by a trusted third party such as family members or friends.[1] These third parties will need to sign separate non-disclosure agreements before being involved in the internal investigation.
In addition, a company may appoint a so-called lawyer of confidence who has been approved by the employer and is thus subject to professional secrecy. This lawyer will not be involved in the internal investigation but may look after the concerned employees and give them confidential advice as well as inform them about their rights and obligations arising from the employment relationship.[2]
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
The employer’s counsel should provide an Upjohn warning at the start of any interview, and delivery of the warning should be documented by a note-taker. An Upjohn warning is the notice an attorney (in-house or outside counsel) provides a company employee to inform the employee that the attorney represents only the company and not the employee individually.
19. What if the employee under investigation raises a grievance during the investigation?
19. What if the employee under investigation raises a grievance during the investigation?
Brazil
Brazil
- at CGM
- at CGM
If the object of the grievance is connected to the ongoing investigation, the investigator may pursue that grievance within the same procedure or open a separate matter, under the company’s rules governing such a situation.
If the object of the grievance is not connected to the investigation, the employee must report the matter, or the investigator can do it, if the company’s policies allow it.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
The employer should require the employee to raise the grievance under the company’s existing grievance reporting, disciplinary and investigation processes so that the grievance, to the extent that it is relevant to the current investigation, can be investigated together. Otherwise, the grievance can be dealt with separately and independently of the existing investigation.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
There are no formal rules or processes for handling grievances in Sweden. Depending on the nature of the grievance, such a complaint may also have to be investigated (unless the grievance is deemed to be trivial). This could, for example, be the case if the grievance concerns new or other work environment issues that the employer is obliged to investigate.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In the context of private internal investigations, grievances initially raised by the employee do not usually have an impact on the investigation.
However, if the employer terminates the employment contract due to a justified legal complaint raised by an employee, a court might consider the termination to be abusive and award the employee compensation in an amount to be determined by the court but not exceeding six months’ pay for the employee (article 336 paragraph 1 (lit. b) and article 337c paragraph 3, Swiss Code of Obligations). Furthermore, a termination by the employer may be challenged if it takes place without good cause following a complaint of discrimination by the employee to a superior or the initiation of proceedings before a conciliation board or a court by the employee (article 10, Federal Act on Gender Equality).
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
Where an employee who is the subject of a workplace investigation raises his or her grievance during the investigation, the investigator should follow the same steps outlined above to triage new issues or claims. The investigator should also discuss with in-house counsel whether any particular steps should be taken to avoid the perception that any disciplinary measures taken against the employee (in the event the original claims are substantiated) were retaliatory.
20. What if the employee under investigation goes off sick during the investigation?
20. What if the employee under investigation goes off sick during the investigation?
Brazil
Brazil
- at CGM
- at CGM
Sick leave suspends the employment agreement, and as a rule the employee should not be contacted during such a suspension. The investigation may continue without the participation of the investigated employee while that employee is absent, have its conclusion suspended while he or she is on leave, and resume once the employee returns to work.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
If the employee under investigation has already responded to the allegations made against him or her and his or her participation is no longer required at this stage in the investigation, the employer may proceed with the investigation even while the employee is off sick.
However, if the employee under investigation has not responded to the allegations made against him or her and his or her participation is still required in the investigation, the company may exercise its discretion to pause the investigation until the employee can assist in the investigations. To prevent an employee from using a medical condition as an excuse to delay or avoid the investigation, the company may require the employee to provide specific medical documentation to address the issue of the employee’s ability to participate in the investigation and to adjust the investigation process accordingly. For instance, instead of scheduling an in-person interview, the company may send a list of written questions for the employee to answer, and may also extend timelines for responding, etc.
If the employee is unable to return to work for the foreseeable future, the employer may consider reaching a provisional outcome based on the available evidence, which would be subject to change when the employee under investigation can return to work.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
The employer is responsible for the employee’s work environment during the investigation. The employer must assess the situation and the impact on the employee’s health and may, depending on the situation, have to postpone certain investigative measures, such as interviewing the employee in question. The investigation may even have to be completed without the employee participating.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The time spent on the internal investigation by the employee should be counted as working time[1]. The general statutory and internal company principles on sick leave apply. Sick leave for which the respective employee is not responsible must generally be compensated (article 324a paragraph 1 and article 324b, Swiss Code of Obligations). During certain periods of sick leave (blocking period), the employer may not ordinarily terminate the employment contract; however, immediate termination for cause remains possible.
The duration of the blocking period depends on the employee's seniority, amounting to 30 days in the employee's first year of service, 90 days in the employee's second to ninth year of service and 180 days thereafter (article 336c paragraph 1 (lit. c), Swiss Code of Obligations).
[1] Ullin Streiff/Adrian von Kaenel/Roger Rudolph, Arbeitsvertrag, Praxiskommentar zu Art. 319–362 OR, 7. A. 2012, Art. 328b N 8 OR.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
If an employee who is the subject of a workplace investigation becomes sick during the investigation, the investigator should complete as much of the process as possible in the employee’s absence, for example by conducting interviews with the complainant and other witnesses and collecting and reviewing relevant documentation. Where the employee’s absence is expected to be short-term, the employer can postpone completing the investigation until the employee returns to work and can be interviewed. Where a lengthy absence is expected, the investigator should take steps to ensure that the employee nevertheless has a fair chance to participate in the process, for example by providing the employee with flexibility in scheduling his or her interview or by offering other accommodations such as conducting the interview by video conference instead of requiring an in-person interview, or alternatively meeting in a neutral place instead of the office. It is important to maintain records of the steps taken to accommodate the employee to show that the process was reasonable and fair.
21. How do you handle a parallel criminal and/or regulatory investigation?
21. How do you handle a parallel criminal and/or regulatory investigation?
Brazil
Brazil
- at CGM
- at CGM
The company may be required to share information or documents with authorities such as a judge, the police, or the Public Attorney's office, or be subject to a government authority’s dawn raid. Workplace investigations can and in most cases should continue, and in such circumstances client-work privilege will be essential to enable the employer to control information being shared with third parties.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
Generally, there are no issues with an internal investigation being conducted in parallel to a criminal or regulatory investigation. The employer should inform the authorities of the ongoing internal investigation and comply with lawful directions from the authorities, for example, to share evidence gathered during the investigation with the authorities.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Handling a parallel investigation will have to be assessed on a case-by-case basis depending on the applicable rules. For instance, an investigation under the Swedish Discrimination Act is subject to certain timing requirements with which the employer must comply. In other cases, it may be more appropriate to hold off the workplace investigation while awaiting the outcome of the parallel investigation.
The police or regulator can, depending on the matter at hand, request an employer to share evidence. The police or the regulator may also, under certain circumstances, retain evidence in a search.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The actions of the employer may carry through to a subsequent state proceeding. First and foremost, any prohibitions on the use of evidence must be considered. Whereas in civil proceedings the interest in establishing the truth must merely prevail for exploitation (article 152 paragraph 2, Swiss Civil Procedure Code), in criminal proceedings, depending on the nature of the unlawful act, there is a risk that the evidence may not be used (see question 27 and article 140 et seq, Swiss Civil Procedure Code).
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
Employers have obligations to conduct a thorough and unbiased internal investigation and take prompt remedial action to prevent further workplace violations. As such, absent a criminal or regulatory investigation where the investigators ask the employer to pause an internal investigation, employers should be prepared to continue their internal investigation in parallel with the criminal or regulatory investigation while cooperating with police or regulatory investigators.
The police and the regulator can often compel the employer to share certain information gathered from its internal investigation. In some cases, the employer should analyse whether the non-disclosure of information evidencing criminal conduct within the company itself constitutes an independent crime or whether an applicable statute or regulation imposes an independent duty to disclose. Alternatively, the employer should consider whether, even absent an affirmative duty to disclose, disclosure of information gathered during an internal investigation may still benefit the employer.
22. What must the employee under investigation be told about the outcome of an investigation?
22. What must the employee under investigation be told about the outcome of an investigation?
Brazil
Brazil
- at CGM
- at CGM
There is no legal obligation to inform them of the outcome. Any obligation would come from the company's policies.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
The employee under investigation should be told of the findings that have been made against the employee, the disciplinary action (if any) that will be taken against the employee and any avenue or timeline for the employee to appeal the outcome of the investigation.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
This depends on the outcome of the investigation and the applicable rules.
If the outcome of the investigation leads to termination, the employer will have to disclose some information regarding the reason for termination. If the employee questions the termination, the employer may have to disclose more information in a subsequent dispute. If the outcome of the investigation leads to less invasive measures, such as a warning, there are less extensive requirements to provide information.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Workplace investigations often result in an investigation report that is intended to serve as the basis for any measures to be taken by the company's decisionmakers.
The employee's right to information based on article 8, Swiss Federal Act on Data Protection also covers the investigation report, provided that the report and the data contained therein relate to the employee.[1] In principle, the employee concerned is entitled to receive a written copy of the entire investigation report free of charge (article 8 paragraph 5, Swiss Federal Act on Data Protection and article 1 et seq, Ordinance to the Federal Act on Data Protection). Redactions may be made where the interests of the company or third parties so require, but they are the exception and must be kept to a minimum.[2]
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
In general, it is often helpful to provide the complainant and subject of the complaint with a short written communication or verbal communication at the end of an investigation to advise that the investigation has concluded. Where the allegations are unsubstantiated, the communication should convey that no evidence of misconduct or unlawful conduct was found. Where the allegations are substantiated, the results and proposed communication should be reviewed with the legal function, together with potential disciplinary and remedial action, before it is communicated to the complainant and the subject of the complaint.
Where the misconduct alleged poses a high risk to the company from a reputational, operational or legal perspective, and especially where an investigation is conducted by outside counsel, outside counsel should determine, in consultation with the relevant individuals at the company, for example the general counsel, how and with whom to share investigation results and if and how to communicate the outcome to the complainant and the subject of the complaint. This is the case regardless of whether the allegations are found to be substantiated or unsubstantiated.
24. What next steps are available to the employer?
24. What next steps are available to the employer?
Brazil
Brazil
- at CGM
- at CGM
If investigators conclude that a breach has occurred, the company may determine the appropriate response, which may include verbal or written warnings; the suspension of employment without payment (for up to 29 days) or termination of employment without or with cause; a review of policies or operational protocols; and new training modules or the updating of training modules.
If the investigators conclude that a breach has not occurred but determine that the report was made in good faith, the case must be set aside. If the investigators determine that the report was made in bad faith, the employer must determine how to respond to the bad-faith reporter.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
The employer should take any follow-up steps required and keep track of whether any appeal against the outcome of the investigation is lodged. If any appeal is lodged, the employer should handle this appeal following its internal procedure. To the extent necessary, any disciplinary measures against the respondent employee should be stayed pending the outcome of the appeal.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
An investigation may result in employment law measures (eg, support, training, relocation, warning, termination or dismissal). An investigation may also be inconclusive and not result in any action.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
If the investigation uncovers misconduct, the question arises as to what steps should be taken. Of course, the severity of the misconduct and the damage caused play a significant role. Furthermore, it must be noted that the cooperation of the employee concerned may be of decisive importance for the outcome of the investigation. The possibilities are numerous, ranging, for example, from preventive measures to criminal complaints.[1]
If individual disciplinary actions are necessary, these may range from warnings to ordinary or immediate termination of employment.
[1] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 180 et seq.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
Where the misconduct alleged is substantiated in whole or in part by an internal investigation, the human resources function, potentially in consultation with in-house or outside counsel, should agree on disciplinary or remedial action to be implemented.
25. Who can (or must) the investigation findings be disclosed to? Does that include regulators/police? Can the interview records be kept private, or are they at risk of disclosure?
25. Who can (or must) the investigation findings be disclosed to? Does that include regulators/police? Can the interview records be kept private, or are they at risk of disclosure?
Brazil
Brazil
- at CGM
- at CGM
There are no legal requirements for the company to share the investigation findings with any party, including the reporter and the investigated party, so the employer must carefully consider the pros and cons of doing so on a case-by-case basis. Interview records can generally be kept private if interviews were conducted by an attorney.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
A summary of the investigation’s findings should be disclosed to the employee who lodged the grievance and the employee under investigation.
If there are parallel criminal or regulatory investigations, the investigation findings should also be disclosed to the authorities.
Interview records or transcripts should be kept private unless disclosure is required by a court order or at the direction of the authorities.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Findings may have to be handed over to the police or the regulator – there is no separate legal protection for material in employer investigations related to authorities. If the investigation has been carried out by a law firm, see question 14 on attorney-client privilege.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The employer is generally not required to disclose the final report, or the data obtained in connection with the investigation. In particular, the employer is not obliged to file a criminal complaint with the police or the public prosecutor's office.
Exceptions may arise, for example, from data protection law (see question 22) or a duty to release records may arise in a subsequent state proceeding.
Data voluntarily submitted in a proceeding in connection with the internal investigation shall be considered private opinion or party assertion.[1] If the company refuses to hand over the documents upon request, coercive measures may be used under certain circumstances.[2]
[1] Oliver Thormann, Sicht der Strafverfolger – Chancen und Risiken, in: Flavio Romerio/Claudio Bazzani (Hrsg.), Interne und regulatorische Untersuchungen, Zürich/Basel/Genf 2016, p. 123.
[2] Oliver Thormann, Sicht der Strafverfolger – Chancen und Risiken, in: Flavio Romerio/Claudio Bazzani (Hrsg.), Interne und regulatorische Untersuchungen, Zürich/Basel/Genf 2016, p. 102 et seq.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
Once fact-finding is complete, the investigator should discuss his or her notes with in-house or outside counsel and prepare a summary of the process, high-level findings, and a proposed resolution at the counsel’s direction. This report should not include subjective commentary and should also avoid including excessive detail, and generally be treated confidentially during and after the investigation. If the report is requested by regulators or the police, the company should discuss with in-house counsel, and preferably also with outside counsel, how to respond to the request and whether any steps need to be taken to protect any applicable legal privilege.
26. How long should the outcome of the investigation remain on the employee’s record?
26. How long should the outcome of the investigation remain on the employee’s record?
Brazil
Brazil
- at CGM
- at CGM
The existence of the investigation should be kept on file for at least five years from the date of its conclusion. All information related to the investigation should be kept on file for the same period, but not on the employee’s record, to avoid the risk of accidental access by unauthorised individuals.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
This depends on the company’s internal disciplinary policy and the severity of the offence. For instance, a written warning issued against an employee for minor misconduct is usually kept in the respondent employee’s file for one year and if the employee does not commit any further breaches during this time, the written warning will be expunged. However, if there is a finding of serious misconduct, particularly if such a determination results in the dismissal of the employee, these records are generally kept in the employee’s file for the duration of time such records are statutorily required to be maintained.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Under the GDPR personal data may not, according to the general principle on storage limitation, be retained for longer than is necessary for the purposes for which the personal data are processed. The GDPR does not stipulate a generally applicable storage limitation period. Such a regulation is, on the other hand, included in the Swedish Whistleblowing Act. If the Swedish Whistleblowing Act applies, the outcome of the investigation and all personal data should be retained for as long as necessary, but not for longer than two years after the investigation has been closed.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
From an employment law point of view, there is no statute of limitations on the employee's violations. Based on the specific circumstances (eg, damage incurred, type of violation, basis of trust or the position of the employee), a decision must be made as to the extent to which the outcome should remain on the record.
From a data protection point of view, only data that is in the interest of the employee (eg, to issue a reference letter) may be retained during the employment relationship. In principle, stored data must be deleted after the termination of the employment relationship. Longer retention may be justified if rights are still to be safeguarded or obligations are to be fulfilled in the future (eg, data needed regarding foreseeable legal proceedings, data required to issue a reference letter or data in relation to a non-competition clause).[1]
[1] Wolfgang Portmann/Isabelle Wildhaber, Schweizerisches Arbeitsrecht, 4. Edition, Zurich/St. Gallen 2020, N 473.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
There is no requirement for the results of a workplace investigation to remain on an employee’s record for any specific period. It is often helpful, however, for information relating to the outcome of such an investigation (regardless of whether the allegations are substantiated) to be accessible to the human resources or legal functions such that during the initial complaint intake process described above, any prior complaints and investigations relating to the same individual or group of individuals can be taken into account to identify any recurring issues or systemic violations.
27. What legal exposure could the employer face for errors during the investigation?
27. What legal exposure could the employer face for errors during the investigation?
Brazil
Brazil
- at CGM
- at CGM
The employer’s legal exposure resulting from errors during the investigation depends on the error and the victim or victims affected. It may range from paying damages to a witness who was harassed because the company did not prevent retaliation from occurring; to the reversal of a termination for cause if a court determines that the evidence collected during the investigation did not meet the legal threshold to uphold it; to indemnification for a violation of privacy; or criminal prosecution because of unauthorised access to private communications.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
The employer may be exposed to legal action for a failure to properly conduct the investigation, including having such portions of the investigation set aside or held to be void by the courts, and be made to pay damages to the affected employee; or face investigation and administrative penalties by regulatory authorities such as the MOM.
In addition, after the Workplace Fairness Legislation comes into force, breach of its requirements may also expose the employer or culpable persons to potential statutory penalties. The Tripartite Committee on Workplace Fairness recommended, among other things, for the Workplace Fairness Legislation to provide for a range of penalties including corrective orders, work pass curtailment and financial penalties against employers or culpable persons, depending on the severity of the breach. It is thus expected that employers or culpable persons may be exposed to potential statutory penalties if the requirements of the Workplace Fairness Legislation are not complied with.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Errors resulting in terminations can be unlawful and, if they lead to employees terminating their employment as a result of the employer’s missteps, could be seen as constructive dismissal. Constructive dismissal is generally equivalent to an unlawful dismissal. Unlawful terminations generally result in an obligation to pay financial and general damages to the affected employees.
Failure to fulfil the obligations under the Swedish Discrimination Act may lead to an obligation to pay financial and general damages.
If an employer does not fulfil its obligations according to work environment legislation, there is a risk that the Swedish Work Environment Authority will issue injunctions or prohibitions against the employer. If an employer omits to meet its work environment related obligations, and that in turn results in a work related accident, e.g. self-harm in connection with an internal investigation, it may also, in a worst case scenario, lead to criminal liability.
The Swedish Work Environment Authority is also responsible for monitoring compliance with the provisions of the Swedish Whistleblowing Act. The Swedish Work Environment Authority may, if necessary to ensure compliance with the Swedish Whistleblowing Act, order an operator to comply with the obligations and requirements of the Swedish Whistleblowing Act. Employers violating the Swedish Whistleblowing Act may also be liable to pay damages to the affected employees.
If personal data is processed in a way that violates the GDPR, the authorised supervisory authority may issue warnings or reprimands to the data controller, order the controller to comply with the GDPR, impose a ban on processing, or impose an administrative fine on the controller. Companies violating the GDPR may also be liable to pay damages to data subjects.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
As there are no specific regulations for internal investigations, the usual legal framework within which the employer must act towards the employee derives from general rules such as the employer's duty of care, the employee's duty of loyalty and the employee's data protection rights.
But, for example, unwarranted surveillance could conceivably result in criminal liability (article 179 et seq, Swiss Criminal Code) for violations of the employee's privacy. Furthermore, errors made by the employer could have an impact on any later criminal proceedings (eg, in the form of prohibitions on the use of evidence).[1]
Evidence obtained unlawfully may only be used in civil proceedings if there is an overriding interest in establishing the truth (article 152 paragraph 2, Swiss Civil Procedure Code). Consequently, in each case, a balance must be struck between the individual’s interest in not using the evidence and in establishing the truth.[2] The question of the admissibility of evidence based on an unlawful invasion of privacy is a sensitive one – admissibility in this case is likely to be accepted only with restraint.[3] Since the parties in civil proceedings do not have any means of coercion at their disposal, it is not necessary, in contrast to criminal proceedings, to examine whether the evidence could also have been obtained by legal means.[4]
Unlawful action by the employer may also have consequences on future criminal proceedings: The prohibitions on exploitation (article 140 et seq, Swiss Criminal Procedure Code) apply a priori only to evidence obtained directly from public authorities. Evidence obtained unlawfully by private persons (ie, the employer) may also be used if it could have been lawfully obtained by the authority and if the interest in establishing the truth outweighs the interest of the individual in not using the evidence.[5] Art. 140 paragraph 1 Swiss Criminal Procure Code remains reserved: Evidence obtained in violation of Art. 140 paragraph 1 Swiss Criminal Procure Code is subject to an absolute ban on the use of evidence (e.g. evidence obtained under the use of torture[6]).[7]
[1] Cf. ATF 139 II 7.
[2] ATF 140 III 6 E. 3
[3] Pascal Grolimund in: Adrian Staehelin/Daniel Staehelin/Pascal Grolimund (editors), Zivilprozessrecht, Zurich/Basel/Geneva 2019, 3rd Edition, §18 N 24a.
[4] Pascal Grolimund in: Adrian Staehelin/Daniel Staehelin/Pascal Grolimund (editors), Zivilprozessrecht, Zurich/Basel/Geneva 2019, 3rd Edition, §18 N 24a.
[5] Decision of the Swiss Federal Court 6B_1241/2016 dated 17. July 2017 consid. 1.2.2; Decision of the Swiss Federal Court 1B_22/2012 dated 11 May 2012 consid. 2.4.4.
[6] Jérôme Benedict/Jean Treccani, CR-CPP Art. 140 N. 5 and Art. 141 N. 3.
[7] Yvan Jeanneret/André Kuhn, Précis de procédure pénale, 2nd Edition, Berne 2018, N 9011.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
The subject of the investigation, the complainant, or a government agency investigating the same alleged misconduct could subject the employer to legal exposure. It is, therefore, helpful for a company to prepare a contemporaneous report of the investigation that summarises: the incident or issues investigated, including dates; the parties involved; key factual and credibility findings; employer policies or guidelines and their applicability to the investigation; specific conclusions; the party (or parties) responsible for making the final determination; issues that could not be resolved through the internal investigation; and employer actions taken.
The employer should also maintain a clear record of the steps taken to investigate the alleged misconduct and any findings, as well as all evidence gathered during the investigation, including documents collected and reviewed, any work done to identify systemic issues or patterns of behaviour, and notes from all interviews, which should be limited to the facts gathered, dated and should indicate the duration and location of the interview.