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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
Austrian law does not impose an obligation on employers to conduct internal investigations and they do not have to follow a specific legal pattern when doing so. However, an obligation to conduct internal investigations may arise out of certain provisions of criminal, company or even labour law – in particular, an indirect obligation arising from an employer's duty of care, which requires them to act against employee mistreatment, such as bullying.
If such internal investigations are initiated, compliance with labour law and data protection regulations is mandatory. According to section 16 of the Austrian Civil Code (ABGB), the employer must also protect the personal rights of the individual. It is important to emphasise that a company's internal investigation is a private measure and differs from official investigations.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
The Employment Ordinance (EO), which is the primary legislation governing employment relationships in Hong Kong, does not provide for a statutory workplace investigation procedure.
The Labour Department of Hong Kong has, however, published a Guide to Good People Management Practices[1] which recommends that employers lay down rules of conduct, grievance and disciplinary procedures. Such rules should be simple and clear, logical and fair, and in line with the provisions in the EO.
As part of risk management and internal controls, Hong Kong-listed companies are expected by The Stock Exchange of Hong Kong Limited (SEHK) to establish whistleblowing policies and systems for employees to raise concerns about possible improprieties with independent board members. Listed companies are also expected to establish policies for the promotion and support of anti-corruption laws and regulations. Such policies and systems may include workplace investigation procedures.[2] If a listed company chooses to not establish such policies and systems, it is required to explain how it could achieve appropriate and effective risk management and internal controls.
[1] Hong Kong Labour Department, “Guide to Good People Management Practices” (June 2019) <https://www.labour.gov.hk/eng/public/wcp/practice.pdf>.
[2] SEHK, Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited, Appendix 14, Provision D.2.6, D.2.7. SEHK, “Corporate Governance Guide for Boards and Directors” (December 2021) <https://www.hkex.com.hk/-/media/HKEX-Market/Listing/Rules-and-Guidance/Corporate-Governance-Practices/guide_board_dir.pdf>.
Nigeria
Nigeria
- at Bloomfield LP
- The Constitution of the Federal Republic of Nigeria, 1999 (as amended)
- The Criminal Code Act
- Penal Code Law
- Money Laundering (Prohibition) Act 2011 (as amended)
- Freedom of Information Act 2011
- Terrorism (Prevention) Act 2013
- Independent Corrupt Practices and other related offences Act 2000
- Code of Conduct Bureau and Tribunal Act
- Companies and Allied Matters Act 2020
- Nigerian Code of Corporate Governance 2018
- Economic Financial Crime Commission (Establishment) Act 2004
- Investment Securities Act 2007
- Central Bank of Nigeria Act 2007
- Banks and Other Financial Institutions Act 2020
- Whistleblowing Programme under the Ministry of Finance
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.
02. How is a workplace investigation usually commenced?
02. How is a workplace investigation usually commenced?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
In general, an internal investigation is only initiated if there is suspicion of a violation. The decision to commence an internal investigation is up to the company, and it has to weigh the pros and cons. For limited liability companies, which are subject to the Association Responsibility Act, an internal investigation may exempt them from criminal liability. Disadvantages may include investigation costs, disruption of operations, discovery of information requiring later disclosure, possible negative media coverage and increased risk of exposure to external parties.
Investigations can relate to specific individuals, departments, or the entire company. An investigation may include various measures, such as obtaining and analysing files and documents, conducting questionnaires and employee interviews, monitoring internet use, video or telephone surveillance of employees and setting up whistleblowing hotlines. Not all measures are acceptable without restrictions. The provisions of labour law and data protection law must always be complied with.
To avoid wasting resources, the objectives of the investigation should be defined in advance. In addition, the selection and sequence of instruments to be used should be determined. A legal assessment of the chosen measures is essential to avoid legal complications.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
The circumstances in which an employer commences a workplace investigation may vary. However, it is common that an employer will consider it necessary to commence a workplace investigation upon receipt of a complaint concerning a fellow employee. Sometimes, the complaint may be made anonymously. If the employer considers there to be substance in the complaint, it may commence an investigation to find out the truth of the matter, resolve the complaint and, if necessary, improve its systems and controls to prevent the reoccurrence of any misconduct.
A workplace investigation may be warranted if the employer receives an enquiry from a regulator concerning its affairs or an employee’s conduct. The investigation findings could enable the employer to respond to the regulator (which could be a mandatory obligation) and at the same time assess its risk exposure.
Nigeria
Nigeria
- at Bloomfield LP
A workplace investigation is conducted to verify alleged misconduct within a workplace.[1] Once a complaint is made regarding wrongdoing, misconduct or unethical behaviour by an employee or group of employees within a workplace, an investigation is required to confirm the complaint and if it is confirmed, the body in charge of supervising the employees (usually the HR specialist, disciplinary committee or line managers) determine and implement necessary corrective or disciplinary actions.
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]
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)?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
Yes. An employer may always, and without legal restrictions, temporarily suspend an employee during an internal investigation, provided he or she continues to be paid.
However, suspending the employee does not release the employer from an obligation to terminate employment without notice. It must be clear to the employee that the suspension is a temporary measure in preparation for dismissal. A suspension does not entitle the employer to postpone the reasons for dismissal for any length of time. The longer the suspension lasts, the more likely it is that the employer intends to keep the employee.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
It may be appropriate to suspend an employee during a workplace investigation, for instance, where the investigation has revealed misconduct on his or her part (even on a preliminary basis), or his or her continued presence in the business would hinder the progress of the investigation. However, the employer will have to consider the relevant legislative provisions and the terms of the employment contract before making any decision on suspension.
Under section 11 of the EO, an employer may suspend an employee without pay pending a decision as to whether the employee should be summarily dismissed (up to 14 days) or pending the outcome of any criminal proceedings against the employee arising out of his or her employment (up to the conclusion of the criminal proceedings). If an employee is suspended as above, however, the employee may terminate his or her employment without notice or payment in lieu of notice.
It is more common for an employer to suspend an employee with pay during an investigation concerning his or her conduct rather than exercising its statutory right as mentioned above. This could avoid an unnecessary dispute with the employee concerned. Indeed, it is common for employers to include in employment contracts specific provisions to give themselves the right to suspend an employee with pay in certain circumstances. The provisions normally set out the circumstances in which the employer may exercise the right, the maximum period of suspension and other arrangements during the suspension period (eg, how the employee’s entitlements under the employment contract are to be dealt with).
Nigeria
Nigeria
- at Bloomfield LP
Yes, an employee can be suspended during an investigation to allow the employer to investigate the allegations against the employee unhindered and without undue interference by that employee. A suspension under the law merely prevents the employee from discharging the ordinary functions of his or her role without any deprivation of his rights during the period of the suspension. Thus, unless there is an express provision in the contract of employment or employee’s handbook stating that the employee can be suspended with or without half pay, the employee would be entitled to a full salary.
Further, the duration for which the employee may be suspended should be as contained in the employee’s contract, employee’s handbook, or letter of suspension.
In the recent case of GLOBE MOTORS HOLDINGS NIGERIA LIMITED v. AKINYEMI ADEGOKE OYEWOLE (2022), the court held, “Since suspension is not a termination of the employment contract nor a dismissal of the employee, the implication is that the employee is still in continuous employment of the employer until he is recalled or formally terminated or dismissed. Pending his recall or dismissal, a suspended employee is entitled to his wages or salary during the period of suspension, unless the terms of the contract of employment or the letter of suspension itself is specific that the suspended employer will not be paid salaries during the period of suspension”.
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.
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
There are no prescribed minimum standards for this procedure. The responsibility for conducting these investigations lies with the employers. Internal compliance or legal teams are often entrusted with this task, as they are familiar with internal protocols. In practice, these investigations are often overseen by an internal team, occasionally with the assistance of law firms or auditing firms. Those involved in the investigation must remain impartial. Potentially biased persons, such as those under investigation and their close associates, should be excluded from participation.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
There are no statutory or regulatory requirements regarding the choice of investigator in workplace investigations. However, it is good practice to have the investigation conducted by persons who have been trained to do so as investigations may involve intricate issues. It is also important that the investigators are perceived to be impartial and fair. For that reason, the investigators should be individuals who are not involved in the matter under investigation.
Complex cases or cases that involve a senior employee may require someone more senior within the company to lead and oversee the conduct of the investigation. This also applies where it is foreseeable that the investigation may lead to disciplinary action, summary dismissal of the employee or a report to an authority.
Engagement of external parties or professional advisors may be necessary if the conduct under investigation is serious or widespread and may lead to regulatory consequences, or if the employer does not have the requisite expertise to handle the investigation. Lawyers (whether in-house counsel or external lawyers) may be the best fit to conduct a workplace investigation to ensure that legal professional privilege attaches to documents and communications created during the investigation (please see question 14).
Nigeria
Nigeria
- at Bloomfield LP
Typically, the legal department, the chief compliance officer, the HR manager, the audit committee or any other committee as may be set up by the company may conduct a workplace investigation. However, in other instances, the company may engage the services of independent external personnel to assist with conducting an internal investigation.
The minimum qualification or criteria of the person conducting the investigation should be as contained in the relevant company policies. Criteria may include independence, objectivity and 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.
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
If the investigated employee believes that individual measures violate his rights, he or she can defend him or herself against them, but he or she cannot stop the entire investigation.
In principle, the employee has various rights such as access, rectification, erasure and the right to contest the processing of his or her data (articles 12-17 and 21 GDPR). Should these principles be violated, the employee has the right to lodge a complaint with the data protection authority.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
If the investigation is conducted in a manner that is contrary to an express term of the employment contract or the implied obligation of trust and confidence of the employer under common law (please see question 11), the employee may have a claim for breach of contract and possible remedies may include declaratory and injunctive relief against the investigation.
Nigeria
Nigeria
- at Bloomfield LP
Generally, issues surrounding workplace investigations are usually embedded in either the employee’s contract or handbook, which is binding on the employee. Thus, an employee cannot validly bring an action to stop the investigation unless his rights as guaranteed by the Constitution, the Employee’s handbook, and other laws such as a right to a fair hearing are violated during the investigation.
Consequently, the employee may apply to the National Industrial Court for an order of interim relief against his or her employer restraining further prejudicial investigation.
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.
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
An essential part of an internal investigation is the questioning of employees. Their statements contribute significantly to clarifying possible violations. In particular, the legal principles that apply to criminal proceedings, including the right to refuse to testify, do not apply directly to internal investigations.
Employees do not legally have to participate in such interviews. Their duty to cooperate arises indirectly from other legal provisions, in particular from employees’ duties of loyalty and service under labour law.
Austrian law suggests there is a general principle of loyalty, which triggers a “duty to inform” under some circumstances; in principle, the employee and any witnesses are expected to provide information in the context of internal investigations. While the employee is not compelled to incriminate him or herself, he or she also may not withhold work-related information that the employer legitimately wishes to protect, for the sole reason that it might incriminate him or her. The decision as to whether the employee must disclose information depends on a balancing of interests in the specific case.
Investigators and employers must strictly adhere to the permissible limits. This requires compliance with labour law, criminal law and data protection law.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
Under Hong Kong law, the employee has an implied duty to obey lawful instructions from his or her employer and to serve the employer with fidelity and good faith during the term of his or her employment. A lawful instruction from an employer may include a reasonable request for the employee to participate and provide information in the workplace investigation. If the employee refuses to comply with such instruction or is obstructive or provides untrue or misleading information, it could constitute a ground for summary dismissal under the EO and at common law.
That said, in general terms, an employer should not compel any employee to testify against a co-worker, particularly if such a co-worker is a senior colleague, as evidence provided under compulsion may not be helpful to the investigation.
Employees who act as witnesses must be treated as per their contractual and statutory rights, including the right against self-incrimination. If the investigation involves allegations of discrimination on the ground of sex, race or disability, the employer should ensure that the witnesses will not be victimised or treated less favourably than other employees.
Nigeria
Nigeria
- at Bloomfield LP
The employee’s contract, employee handbook or company policies typically mandate an employee to cooperate and participate in good faith in any lawful internal investigation undertaken by the company, and also protects an employee acting as a witness in an internal investigation. Some of the legal protections available to an employee acting as a witness during workplace investigations are freedom from intimidation, threats or the loss of employment.
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.
07. What data protection or other regulations apply when gathering physical evidence?
07. What data protection or other regulations apply when gathering physical evidence?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
All data processing must comply with the principles of article 5 GDPR (lawfulness, fairness, transparency, purpose limitation, data minimisation, accuracy, storage limitation and integrity). Personal data may only be collected and processed for specific, lawful purposes.
The admissibility of data processing depends on whether the suspicion relates to a criminal offence or another violation of the law. If the data processing is relevant to criminal law, article 10 GDPR or section 4(3) of the Austrian Data Protection Act (DSG) applies. If the investigations are exclusively to clarify violations under civil or labour law, such as an assertion of claims for damages or if they are general investigations to establish a criminal offence, the permissibility of data processing is based on article 6 or, for data covered by article 9 GDPR, on this provision.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
If physical evidence contains data relating to an individual, from which the identity of the individual can be ascertained,[1] the data would constitute personal data under the Personal Data (Privacy) Ordinance (Cap. 486) (PDPO). The PDPO sets out several data protection principles that the employer must comply with while processing personal data, including:[2]
- personal data must be collected for a lawful purpose related to a function or activity of the employer and should not be excessive for this purpose. An internal investigation would be regarded as a lawful purpose;
- personal data must be accurate and not kept longer than is necessary;
- personal data must not be used for a purpose other than the internal investigation (or other purposes for which the data was collected) unless the employee consents to a new use or the new use falls within one of the exceptions provided in the PDPO;
- personal data must be safeguarded against unauthorised or accidental access, processing or loss; and
- the employee whose personal data has been collected has the right to request access to and correction of his or her personal data retained by the employer.
If an employer wants to gather evidence through employee monitoring, it should ensure that the act of monitoring complies with the data protection principles of the PDPO if the monitoring activity would amount to the collection of personal data. The Privacy Commissioner for Personal Data has issued guidelines to employers on the steps they can take in assessing whether employee monitoring is appropriate for their businesses.[3] As a general rule, employee monitoring should be conducted overtly. Further, those who may be affected should be notified in advance of the purposes the monitoring is intended to serve, the circumstances in which the system will be activated, what personal data (if any) will be collected and how the personal data will be used.
Covert surveillance of employees should not be adopted unless it is justified by relevant special circumstances. Employers should consider whether there is reason to believe that there is an unlawful activity taking place and the use of overt monitoring would likely prejudice the detection or collection of evidence.[4] Even if covert monitoring is justified, it should target only those areas in which an unlawful activity is likely to take place and be implemented for a limited duration of time.
Nigeria
Nigeria
- at Bloomfield LP
When gathering evidence, the person being investigated is protected by the Constitution, the Freedom of Information Act and the Nigerian Data Protection Regulation (NDPR), among others.
The Constitution, particularly section 37, guarantees the right of a person to privacy.
The NDPR is the main data protection regulation in Nigeria. It regulates the processing and transfer of personal data.
Further, the Freedom of Information Act, 2011 prohibits the disclosure of information gathered during an investigation to the public.
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.
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
In general, it is advisable to back up data, documents, emails and other records promptly to prevent their deletion. Admissibility depends on whether the data originates from personal or professional records and whether they are legally relevant. If internal investigations are carried out based on a specific suspicion of a criminal offence, it is the processing of legally relevant data. In general, the processing of professional emails or documents is permissible. If there is no professional connection, access to private files and documents is only permitted in exceptional cases.
If, for example, using a business email account for private purposes is not allowed, the employer can usually assume that the data processed is only "general" data within the meaning of article 6 GDPR and that such data processing is justified by a balancing of interests. However, if private use is allowed, the data may still be part of a special category within the meaning of article 9 GDPR. In such cases, the justification for its use must be based on one of the grounds explicitly mentioned in article 9(2) GDPR.
The employer must protect the employee's rights under section 16 of the ABGB and must consider the proportionality of the interference. Only the least restrictive means – the method that least interferes with the employee's rights – may be used to obtain the necessary information. The employer's interest in obtaining the information must outweigh the employee's interest in protecting his or her rights. The implementation or initiation of controls by the employer does not automatically constitute an interference with personal rights, as being subject to the employer's rights of control is part of the position as an employee.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
As part of an investigation, an employer may search objects or files that are the company’s property (eg, electronic devices given by the employer for business purposes and emails or messages stored on the company’s server) without prior notice and the employee’s consent is not needed. The employer, however, has no right to search an employee’s possessions (eg, a private smartphone) without the employee’s consent.
To avoid arguments as to who a particular object belongs to, employers may specify in internal policies what is to be regarded as a corporate asset and could be subject to a search in a workplace investigation.
Concerning an employee’s possessions, even if he or she consents to a search, it is good practice for the employer to conduct the search in the presence of the employee or an independent third party who can act as a witness to the search. If the employer suspects that a criminal offence has been committed and that a search of the employee’s possessions would reveal evidence, the employer should consider reporting its suspicion to the police, as they have wider legal powers to search.[1]
[1] Usually upon execution of a warrant.
Nigeria
Nigeria
- at Bloomfield LP
Yes, an employer can search the possessions or files of an employee as part of an investigation where the employee’s contract or handbook authorises such a search and there is a reasonable suspicion of wrongdoing.
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.
09. What additional considerations apply when the investigation involves whistleblowing?
09. What additional considerations apply when the investigation involves whistleblowing?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
The provisions of the Whistleblowing Directive must be respected. In Austria, these have been implemented through the Whistleblower Protection Act (HSchG). If the whistleblower or the persons concerned fall within the scope of the Directive, their identity must be protected. Only authorised persons may access the report. Retaliatory measures are invalid or must be reversed. Within a maximum of seven days, the whistleblower must receive a confirmation of his or her complaint. Feedback to the whistleblower must then be provided within a maximum of three months.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
Hong Kong does not have a comprehensive legislative framework relating to whistleblowing. Therefore, in general, employers are free to establish whistleblowing policies and procedures and confer such protections on whistleblowers as they see fit. That said, companies listed on the Main Board of the SEHK are expected to establish a whistleblowing policy and system for employees to voice concerns anonymously about possible improprieties in the companies’ affairs. If a listed issuer deviates from this practice, it must explain the deviation.[1]
When an investigation involves whistleblowing, the employer needs to comply with the relevant policy and system and provide the whistleblower with such protections as stated in the policy. The employer should not ignore a complaint simply because it was made anonymously, and should ascertain the substance of the complaint to decide whether a full-blown investigation is warranted.
In addition, the employer should seek to establish a secure communication channel with the whistleblower to gather more information about the complaint or misconduct while maintaining the confidentiality of his or her identity. If the complaint is serious, the employer may consider referring the complaint to a law enforcement agency or regulator as they would be better placed in protecting the anonymity of the whistleblower while proceeding with the investigation. That said, employers generally have no obligation to report internal wrongdoing to any external body (please see question 25 for exceptions). The employer may assess whether it is appropriate to do so on a case-by-case basis.
[1] The Corporate Governance Code, Appendix 14 of the Rules Governing the Listing of Securities on the Stock Exchange of Hong Kong Limited.
Nigeria
Nigeria
- at Bloomfield LP
Consideration must be given to the confidentiality or anonymity of the whistleblower, when an investigation involves whistleblowing.
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.
10. What confidentiality obligations apply during an investigation?
10. What confidentiality obligations apply during an investigation?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
If the report and the whistleblower fall within the scope of the Whistleblowing Directive, his or her identity must be protected. From a data protection perspective, the principles of the DSG must be observed to protect the legitimate confidentiality of the individuals concerned.
Furthermore, the employer should ensure that information is only disclosed to trustworthy persons to avoid pre-judgements.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
Workplace investigations should usually be conducted on a confidential basis to preserve the integrity of the investigation, avoid cross-contamination of evidence and maintain the confidentiality of the employee under investigation. This means that those involved in the investigation (ie, the subject employee and any material witnesses) should be made aware of the fact and substance of the investigation on a need-to-know basis.
While the extent of the confidentiality obligations are usually governed by the employer’s internal policies and the employment contract, there are circumstances where the employer has a statutory duty to keep information unearthed in the investigation confidential. For instance, if it is found that certain property represents proceeds of an indictable offence[1] or drug trafficking[2], or is terrorist property[3], the employer should report its knowledge or suspicion to the Joint Financial Intelligence Unit (JFIU) as soon as is reasonably practicable and avoid disclosure to any other person as such disclosure may constitute “tipping off”. Another example is if a workplace investigation is commenced in response to a regulatory enquiry, the employer may be bound by a statutory secrecy obligation and may not be at liberty to disclose anything about the regulatory enquiry to anyone including those who are subject to the workplace investigation. For example, section 378 of the Securities and Futures Ordinance (SFO) imposes such a secrecy obligation on anyone who is under investigation or assists the Securities and Futures Commission (SFC) in an investigation.[4]
[1] OSCO section 25A(5). A person who contravenes the section is liable on conviction on indictment to a fine of $500,000 and to imprisonment for 3 years, or upon summary conviction to a fine of $100,000 and to imprisonment for 1 year.
[2] DTROPO section 25A(1). A person who contravenes the section is liable on conviction on indictment to a fine of $500,000 and to imprisonment for 3 years, or upon summary conviction to a fine of $100,000 and to imprisonment for 1 year.
[3] UNATMO section 12(1). A person who contravenes the section is liable on conviction to a fine and to imprisonment for 3 years, or upon summary conviction to a fine of $100,000 and to imprisonment for 1 year.
[4] A person who fails to maintain secrecy is liable upon conviction on indictment to a maximum fine of $1 million and imprisonment for up to two years (or upon summary conviction, to a maximum fine of $100,000 and imprisonment for up to six months).
Nigeria
Nigeria
- at Bloomfield LP
Workplace investigations should be kept strictly confidential to protect the parties involved in the investigation from victimisation. Some of the confidential obligations that apply during investigations are the identities of the parties involved in the process (whether as a complainant, respondent or witnesses), the confidentiality of reports, recordings and other documents generated or discovered during the investigation, as well as attorney-client privilege between the employee and his or her attorney, provided that such privilege is within the bounds of the law.
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.
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
The purpose of internal investigations would be jeopardised by fully informing a suspected employee beforehand, as it would allow him or her to hide or destroy possible evidence, plan his testimony or coordinate with other employees.
There is no legal requirement to inform the employee of the allegations or suspicions.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
An employer’s internal policies or the employment contract may provide that an employee under investigation should be given certain information concerning the allegations raised against him or her. Such policies or terms should be followed and failure to do so may result in a claim for breach of contract or constructive dismissal by the employee. Even where there are no express provisions, the employer still owes an implied obligation of trust and confidence towards the employee at common law, which requires the employer not to, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between itself and the employee.[1] In the context of an internal investigation, the implied duty would require the employer to conduct the investigation and reach its findings reasonably and rationally following the evidence available and in good faith. This would normally require that sufficient information about the allegations made against the employee be provided to him or her such that he or she has the opportunity to properly respond to the allegations before any disciplinary action is taken or any decision about his or her employment is made.
[1] Malik v Bank of Credit and Commerce International SA (In Liquidation) [1998] AC 20.
Nigeria
Nigeria
- at Bloomfield LP
An employee must be given the full details of the allegations against him or her to enable the employee to make adequate representations against the complaints made against him or her.
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.
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
When dealing with reports and persons covered by the HSchG, the provisions on identity protection must be followed. In all internal investigations, only authorised persons should receive information.
Brazil
Brazil
- at CGM
- at CGM
Yes, the identity of the complainant, witnesses and sources of information for the investigation should be kept confidential.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
Subject to any internal policies and terms of the employment contract, an employer would have discretion as to whether the identity of the complainant, witnesses or sources of information for the investigation should be kept confidential. In general, the employer should consider how the confidential treatment or its absence would affect the conduct and outcome of the investigation. The disclosure of the identity of the complainant in some cases may be necessary for the employee under investigation to respond in a meaningful way. On the other hand, both the complainant and witnesses may be more forthcoming in providing information if he or she is assured that his or her identity will not be made known to the person under investigation (especially if the latter is senior management personnel). A balance should be struck between the interests of the complainant or witnesses in maintaining confidentiality and the need for the employee under investigation to make a proper response to the allegations made. In any case, the employer should follow its whistleblowing policy if there is one (as discussed in question 9), and take into account practical and statutory considerations relating to confidentiality (as discussed in question 10).
Nigeria
Nigeria
- at Bloomfield LP
Typically, the identities of the complainant, witnesses and sources of information for the investigation are kept confidential.
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.
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
According to section 6(1) of the DSG, employees who have access to personal data in the course of their professional activities must maintain data confidentiality and continue to do so even after termination of their employment.
Non-disclosure agreements can generally be used to achieve this but are subject to certain restrictions. They may not be used to conceal criminal activity, violate the privacy rights of individuals, circumvent legal disclosure obligations, prevent the exercise of legal rights or contain clauses that violate existing laws, in particular data protection regulations.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
In general terms, NDAs can be used and indeed are commonly used to keep the fact and substance of a workplace investigation confidential. However, NDAs will not be effective in preventing the disclosure of information which is in the public interest or is important for safeguarding public welfare in matters of health and safety. Further, several laws in Hong Kong provide that disclosures as a result of compliance with a requirement made by the relevant authorities will not be treated as a breach of any restriction imposed by contract or otherwise by law.[1]
[1] The Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405), the Organized and Serious Crimes Ordinance (Cap. 455), and the United Nations (Anti-Terrorism Measures) Ordinance (Cap. 575)
Nigeria
Nigeria
- at Bloomfield LP
NDAs are usually part of an employee’s contract and, as such, create a contractual obligation between the parties privy to it. However, where the subject matter of an investigation borders on matters of a criminal nature, it might be impossible for parties to the NDA to continually uphold the obligation under the NDA because the parties have an obligation to the state to disclose facts of a criminal nature.
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.
14. When does privilege attach to investigation materials?
14. When does privilege attach to investigation materials?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
If a lawyer is involved in the investigation, communication between the lawyer and client is subject to legal professional privilege. These communications must not be disclosed. Any documents collected by an internal audit can be seized and used. However, a document created by a lawyer can only be seized. The same applies to other professional representatives of parties, such as notaries and auditors, as potential holders of professional secrecy.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
Legal professional privilege may attach to investigation materials if they are generated for the sole or dominant purpose of giving or obtaining legal advice (legal advice privilege); or created with the sole or dominant purpose of either obtaining or giving advice about or obtaining evidence to be used in an actual or reasonably contemplated litigation (litigation privilege).[1] Legal advice privilege applies to confidential communications between lawyers and their clients, whereas litigation privilege may extend to communications between lawyers, clients and third parties. The employer may withhold disclosure of any materials that are subject to either legal advice or litigation privilege.
In the context of a workplace investigation, internal interview records are protected by legal advice privilege if the dominant purpose of creating those records is to seek legal advice on potential disciplinary action against the employee. Such interview records are protected by litigation privilege if they are created to obtain evidence in an actual or reasonably contemplated litigation.
It should be noted that the point in time at which the sole or dominant purpose is judged is when the document is created. In other words, a document is not covered by litigation privilege if it was not created for litigation purposes but was subsequently used to obtain legal advice for litigation.[2] On a practical point, if the employer would like to minimise disclosure of the investigation by claiming privilege over relevant materials, it may wish to limit the number of documents created and persons to which they are circulated to avoid potential waiver of privilege.
Nigeria
Nigeria
- at Bloomfield LP
Privilege attaches to investigation materials when a legal practitioner facilitates the internal investigation. Documents prepared during a workplace investigation will not automatically attract legal professional privilege, unless the investigation is facilitated by a legal practitioner.
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.
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
In general, an employee is not entitled to have a representative present during investigations. However, he is free to reach out to the works council or independently contact a lawyer for advice. The employer must hear the works council upon his or her request on all matters concerning the interests of employees at the company. Once disciplinary proceedings begin, the employee has the right to be represented by a lawyer.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
Absent any right conferred by the employment contract or the relevant internal policy, employees do not have a right under Hong Kong law to be accompanied or have legal representation during an investigation meeting or interview. While the employee being investigated is entitled to seek his or her own legal advice during the investigation, employers have discretion on whether to allow the employee to be accompanied or represented by his or her legal adviser in an investigation meeting or interview. That said, to ensure fairness in the process and to avoid unnecessary allegations of undue influence, the employer may consider allowing the employee to have legal representatives present, especially if serious allegations are made against the employee and the outcome of the investigation could have a significant impact on the employee’s future.
Nigeria
Nigeria
- at Bloomfield LP
The Constitution guarantees the right of every person to legal representation during investigations and interrogations by law enforcement agencies. However, our labour legislation is silent on whether an employee has a right to be accompanied or have legal representation during an investigation. Whether an employee has a right to legal representation will depend on the policy of the employer as well as the nature of the interrogation.
In practice, an employee is usually not accompanied or represented legally during an investigation. However, unless it is stipulated in the employee’s policy, nothing prohibits the employee from being accompanied or represented legally during an investigation.
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.
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
The Austrian Labour Constitution Act (ArbVG) does not contain any provisions regarding workplace investigations. The employee has the right to address the works council but is not entitled to have the works council comply with his or her request.
The works council's opportunities for participation are conclusively regulated. Certain investigative or control measures may require the consent or co-determination of the works council.
Under section 96(1)3 ArbVG, the consent of the works council is required if the employer wishes to introduce and maintain control measures or technical systems for monitoring employees that affect human dignity, such as video surveillance or specific staff questionnaires. If there is no works council, the consent of each individual employee is required.
Brazil
Brazil
- at CGM
- at CGM
No, there is no such right.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
Unless the employment contract or the relevant internal policies specify otherwise, there is no automatic right under Hong Kong law for a works council or trade union to be informed or involved in a workplace investigation.
Nigeria
Nigeria
- at Bloomfield LP
The law is silent on whether a member of a trade union has the right to be informed or involved in the investigation. Typically, this is dependent on the employee’s contract, handbook or other policies of the employer.
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.
17. What other support can employees involved in the investigation be given?
17. What other support can employees involved in the investigation be given?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
There is no additional support for the employees concerned. However, the employer may offer support measures to the employees to ensure better cooperation. The choice of support measures is at the employer's discretion. For example, the employer could offer to bear lawyer’s fees, if the employee is cooperative. Such decisions must always be made on a case-by-case basis.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
It could be stressful for employees to be involved in a workplace investigation, whether as the victim, the subject of an investigation or a witness. More transparency in the process would help reduce stress. This could be achieved by providing the relevant employees with the timeline for different stages of the investigation and regular updates.
The employer may also consider providing mental health support to the employees concerned, for example in the form of counselling services or medical consultations. Where appropriate, the employer may also consider making reasonable adjustments to the employee’s workload and work schedule to facilitate his participation in the investigation.
Nigeria
Nigeria
- at Bloomfield LP
An employee being investigated has a right to be heard before a decision being made by the employer. Further, the body responsible for investigating the employee must be independent, so as not to be considered biased.
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]
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
Provided the employer complies with labour law and data protection regulations, internal investigations are lawful and are not regarded as administrative or judicial proceedings. If legal consequences for not cooperating, such as dismissal, are threatened by the employer or his investigators, the offence of coercion under section 105 of the Austrian Criminal Code could be fulfilled.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
As discussed in question 11, an employer owes an implied obligation of trust and confidence towards its employees under common law. This means that an employer cannot disregard a genuine complaint made by an employee even if the employee is under internal investigation. The employer may have put in place an employee grievance handling policy, which should be followed when handling the employee’s grievance.
If the grievance raised relates to how the workplace investigation is being conducted (for example, it is alleged that the investigator has a conflict of interest or is biased), the employer should consider suspending the investigation until this grievance is properly addressed to ensure fairness. However, if the grievance is nothing but an attempt to delay or hinder the investigation, the employer may be entitled to proceed with the investigation regardless. The employer should therefore carefully assess the nature and validity of any grievance raised in each case. The employer should also consider its rights under the employment contract if the employee is being uncooperative or obstructive.
Nigeria
Nigeria
- at Bloomfield LP
It is not unusual for an employee under investigation to raise a grievance during the investigation. This grievance may be on the same subject matter as the complaint being investigated or may disclose new facts outside the scope of the matter being investigated.
Where the issue discloses new facts, the employer is required to investigate those facts without suspending the investigation. However, where the grievance relates to the same subject matter as the complaint being investigated, the employer may either suspend the investigation to allow the investigation to recognise the grievance and the complaint against the employer or proceed with the investigation while noting that the matter disclosed is being or will be investigated.
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).
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
The involved employee's sick leave does not affect the internal investigation. Most investigative measures can be carried out without the employee's presence.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
If the employee under investigation goes off sick, the employer should ascertain the medical condition of the employee and when he or she is likely to return to fitness. If the employee is unlikely to return to work for a reasonable time, the employer should consider what adjustments can be made to the investigation process to continue with the investigation. If the employee’s input is necessary for the conclusion of the investigation, the employer may invite the employee to provide information by way of a written questionnaire or to attend a virtual meeting. However, the employee may not necessarily agree to these proposals, especially if he or she is unwell. In such circumstances, the employer may not be able to conclude the investigation in the absence of the employee.
Nigeria
Nigeria
- at Bloomfield LP
The investigation would be suspended until the employee returns from sick leave. The investigation will immediately restart upon the return of the employee.
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.
21. How do you handle a parallel criminal and/or regulatory investigation?
21. How do you handle a parallel criminal and/or regulatory investigation?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
Private investigations differ from criminal or regulatory investigations. Nevertheless, even for internal investigations, it is advisable to collect evidence in a way that can be admitted in court, as it may have to be presented to the authorities during the investigation process. Generally, any evidence obtained in the course of an internal investigation may be admitted in subsequent administrative or judicial proceedings.
If the evidence is not voluntarily surrendered, seizure or confiscation is possible. Since official proceedings are often lengthy, suspension is not always recommended.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
Where there is a parallel criminal or regulatory investigation, the employer should handle the workplace investigation with extra care and ensure that it complies with all applicable legal requirements or lawful requests made by the relevant authorities concurrently. While there may be reasons why the employer wants to progress with its investigation as soon as possible, the employer should not take any steps that hinder or obstruct the parallel investigations. Therefore, it may be appropriate for the employer to stay its workplace investigation if its continuation may prejudice the parallel investigations.
The employer may also find itself duty-bound to stay the workplace investigation if it is subject to statutory secrecy obligations vis-à-vis the relevant law enforcement agency or regulatory body. As mentioned in question 10, several laws in Hong Kong impose secrecy obligations on any person who has acquired confidential information about certain law enforcement agencies or regulatory bodies and the investigations being conducted. The employer should assess whether they could continue with the workplace investigation without breaching secrecy obligations. The employer should take a prudent approach and may discuss with the relevant authority before proceeding further with its workplace investigation.
Depending on the nature of the matter, authorities in Hong Kong handling a criminal or regulatory investigation may be empowered to seize, or compel persons who are the subject of an investigation or assisting in such an investigation (which may include the employer) to produce, documents or evidence that are relevant to the matters being investigated. For example:
- the police or the Independent Commission Against Corruption may, under a search warrant (or in certain circumstances, without a warrant), inspect and take possession of articles or documents inside the premise of the employer they reasonably suspect to be of value to the investigation of the suspected offence; and
- the SFC or the Competition Commission may, under the SFO or Competition Ordinance (as applicable), require the employee under investigation or the employer to produce documents, attend interviews, and, specifically for the SFC, provide the investigator with all assistance he or she can give. Both authorities may also obtain a warrant from the Hong Kong courts to search the premise of the employer and obtain documents or information it reasonably believes to be relevant to its investigation.
Documents created and evidence gathered by the employer during its workplace investigation (such as witness statements or investigation reports) may be subject to production requests of, or may be seized by, the authorities mentioned above (unless legal professional privilege is attached). The employer should ensure that it complies with all lawful requests from the authorities.
Nigeria
Nigeria
- at Bloomfield LP
Where an employee has committed misconduct at work that is also the subject of a police investigation, the employer can conduct its own investigation and does not have to await the outcome of the criminal proceedings. The Supreme Court, in the case of Dongtoe v CSC Plateau State (2001), held that it is preposterous to suggest that the administrative body should stay its disciplinary jurisdiction over a person who had admitted criminal offences.
Further, the police or regulator may compel the employer to share evidence with it in the interests of justice.
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).
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
The employee has no general right to be informed of the results of an investigation. However, if the employer is considering consequences under labour law based on the result of the investigation, such as termination or dismissal, the employee must be informed accordingly.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
The employer is generally not obliged under Hong Kong law to inform the employee under investigation of the outcome of the investigation absent any express obligation under the employment contract, even where the investigation has led to a decision to terminate the employee. However, to avoid any unnecessary claim of unlawful dismissal or dismissal without a valid reason, the employer should inform the employee of the reason for his or her termination, even if the investigation results may not be shared in full with the employee.
Nigeria
Nigeria
- at Bloomfield LP
The employee under investigation must be informed of the outcome of the investigation as soon as a decision is reached.
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]
24. What next steps are available to the employer?
24. What next steps are available to the employer?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
The employer may impose consequences under labour law. Consequences may include verbal or written warnings, transfers or other disciplinary measures. The employer may also implement training or educational measures if the issue is due to the employee's lack of knowledge. In serious cases, besides dismissal without notice – for example. if the employer seeks damages –legal action (civil or criminal) may be taken against the employee.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
If the outcome of the investigation reveals that misconduct has been committed by the employee, the employer may consider whether it should allow the employee to defend him or herself against such findings. If the employment contract or relevant internal policies specify a right to be heard on the part of the employee through a disciplinary hearing before any actions can be taken against him or her, such procedures should be followed.
Assuming the employer maintains its findings that the employee has committed misconduct after the conclusion of the disciplinary hearing (if any), the employer may consider taking one of the following disciplinary actions against the employee depending on the nature and severity of the misconduct:
- Verbal or written warning – this is a common form of disciplinary action. The employer may consider including the nature of the misconduct and the potential consequences of repeating such misconduct (for example, termination of employment) in the warning to be given to the employee;
- Termination with notice – the EO allows employers and employees to terminate the employment with notice. It is not necessary to give reasons for the termination unless the employee concerned has been employed for at least 24 months, in which case the employer shall demonstrate a valid reason for the termination as defined under the EO;
- Suspension – the employer may suspend the employee without pay for up to 14 days in circumstances where the misconduct concerned justifies a summary dismissal, or where a decision on summary dismissal is pending. The employee may also be suspended where there is a criminal proceeding against him or her relevant to the investigation, until the conclusion of the criminal proceeding (as discussed in question 3);[1] and
- Summary dismissal – the employer may terminate an employment contract without notice if the employee is found to have:
- wilfully disobeyed a lawful and reasonable order;
- failed to duly and faithfully discharge his duties;
- committed fraud or acted dishonesty; or
- been habitually neglectful in his duties.[2]
Nigeria
Nigeria
- at Bloomfield LP
Upon the completion and receipt of the findings of the investigation, the employer may affirm the employee’s innocence or take disciplinary action against them.
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.
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
It is up to management to decide which results should be disclosed and to whom. It is important to know who the persons concerned are and who has an interest in disclosure.
From a legal perspective, disclosure must follow the GDPR. Internal policies can specify how the results are to be handled. Works Council Agreements (WCAs) may also contain regulations on how to deal with internal investigations and the disclosure of results.
There is no requirement to publish the results of the investigation, but it may be advisable to cooperate with the authorities. This is particularly the case if the employer has suffered damage or is himself threatened with prosecution. The release of investigation results can be compelled through the courts.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
As mentioned in questions 21, 22 and 23, under Hong Kong law, the employer is generally not obliged to actively disclose the findings of a workplace investigation to any party.
Having said that, the employer should be aware of certain statutory disclosure requirements that may become applicable as a result of the matters revealed during the workplace investigation. For example, if the investigation reveals or gives rise to any knowledge or suspicion that any property represents the proceeds of an indictable offence[1], drug trafficking[2], or terrorism[3], the employer is required to report its knowledge or suspicion, together with any matter on which that knowledge or suspicion is based, to the JFIU as soon as is reasonably practicable (even where the investigation has not yet been concluded). Employers who are licensed corporations must also provide the SFC with information about whether departing licensed employees were the subject of an internal investigation in the six months prior to his/her departure. If the internal investigation commences after the departure of the licensed employee, the licensed corporation should notify the SFC as soon as practicable[4].
In any event, as in question 14, if any documents related to the investigation are protected by legal professional privilege, they can generally be kept confidential and would not be subject to disclosure even if the employer is subject to a mandatory reporting or disclosure obligation.
[1] OSCO section 25A(1).
[2] DTROPO section 25A(1).
[3] UNATMO section 12(1).
[4] Frequently Asked Questions on “Disclosure of investigations commenced by licensed corporations in the notifications of cessation of accreditation” issued by the SFC on 21 May 2019 <https://www.sfc.hk/en/faqs/intermediaries/licensing/Disclosure-of-investigations-commenced-by-licensed-corporations#627D0257CCA8410189F48C1A68443112>.
Nigeria
Nigeria
- at Bloomfield LP
Investigation findings may be disclosed to the employee and every other person having an interest in the investigation. Where it is discovered that a crime has been committed, the investigation findings may be disclosed to the regulators or police.
Typically, interview records are kept private and will not be disclosed unless it is interest of justice.
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.
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
Data protection law requires that personal data should not be kept longer than necessary for the purpose it was collected. Once the purpose of the internal investigation is fulfilled and the data is no longer needed, it should be deleted or anonymised. Regulations regarding this matter may also be subject to WCAs or internal policies. In any case, it is advisable to keep the results for as long as they may be needed in possible subsequent administrative or judicial proceedings.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
There is no legal requirement in Hong Kong on this. However, since the investigation records will likely contain personal data, employers should be mindful of the requirement under the PDPO that personal data should not be kept for longer than necessary.[1]
According to the Code of Practice on Human Resources Management published by the Privacy Commissioner for Personal Data, generally, employment data about an employee can be kept for the entire duration of his or her employment, plus a recommended period of no more than seven years after the employee leaves employment unless there is a subsisting reason that justifies a longer retention period. A longer retention period may be justified where there is ongoing litigation or a parallel investigation. Even where it is deemed necessary to retain the outcome of the investigation concerning a departed employee, the employer should ensure that other personal data on the employee’s record (that is unrelated to the purpose of retention) are erased after the expiry of the recommended retention period.
[1] DPP2 (in Sch. 1) and PDPO section 26.
Nigeria
Nigeria
- at Bloomfield LP
The law does not provide for the time the outcome of the investigation may remain on the employee’s record. However, this will depend on the employer’s record-retention policies, which must comply with applicable data protection laws.
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.
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?
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
This relates to the severity of the error. Data protection violations can lead to fines by the data protection authority or claims for damages. If consequences under labour law, such as dismissal, have taken place due to erroneous investigations or incorrect results, the employee concerned can assert claims under labour law or seek damages.
Furthermore, there may be consequences under criminal law. This is particularly the case if documents have been falsified in the course of the investigation. It is, therefore, crucial that employers exercise diligence and due process in internal investigations. Investigations must be conducted transparently and lawfully.
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
If the employer failed to comply with a requirement that is expressly stipulated in the employment contract or employee handbook (such as a procedural requirement to hold a disciplinary hearing or to provide certain information to the employee), the employer could be liable for breaching an express term in the employment contract.
Even where the employment contract does not contain express provisions for the conduct of an internal investigation, the employer is under an implied obligation of trust and confidence under common law (as discussed in question 11), which requires it to conduct the investigation and reach its findings reasonably and rationally in accordance with the evidence available and in good faith.[1] If the employer reached a decision that no reasonable employer would have reached, the conduct of the investigation may be in breach of the employer’s implied obligation of trust and confidence.
If the error in the investigation has led to a termination of employment (whether by way of summary dismissal or termination by notice), the employee may be able to bring a statutory claim for wrongful dismissal, unlawful dismissal or dismissal without a valid reason (as applicable).[2] If such a claim is successful, in addition to ordering the employer to pay monetary compensation, the court or tribunal may also make a reinstatement order (an order that the employee shall be treated as if he had not been dismissed) or re-engagement order (an order that the employee shall be re-engaged in employment on terms comparable to his or her original terms of employment) for the affected employee.
The employer may also be liable for unlawful discrimination under Hong Kong law if the investigation has been conducted in a discriminatory manner or the outcome of the investigation reflects differential and less favourable treatment of the employee concerned based on grounds of sex, marital status, disability, family status or race.
Nigeria
Nigeria
- at Bloomfield LP
- Violation of Fundamental Rights of the Employee
- Breach of Contract of Employment or wrongful termination
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.