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?
02. How is a workplace investigation usually commenced?
03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)?
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
05. Can the employee under investigation bring legal action to stop the investigation?
06. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?
07. What data protection or other regulations apply when gathering physical evidence?
08. Can the employer search employees’ possessions or files as part of an investigation?
09. What additional considerations apply when the investigation involves whistleblowing?
10. What confidentiality obligations apply during an investigation?
11. What information must the employee under investigation be given about the allegations against them?
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
14. When does privilege attach to investigation materials?
15. Does the employee under investigation have a right to be accompanied or have legal representation during 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?
17. What other support can employees involved in the investigation be given?
18. What if unrelated matters are revealed as a result of the investigation?
19. What if the employee under investigation raises a grievance during the investigation?
20. What if the employee under investigation goes off sick during the investigation?
21. How do you handle a parallel criminal and/or regulatory investigation?
22. What must the employee under investigation be told about the outcome of an investigation?
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23. Should the investigation report be shared in full, or just the findings?
24. What next steps are available to the employer?
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?
26. How long should the outcome of the investigation remain on the employee’s record?
27. What legal exposure could the employer face for errors during the investigation?
23. Should the investigation report be shared in full, or just the findings?
23. Should the investigation report be shared in full, or just the findings?
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Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
The employer should determine the intended recipients and format of the report in advance. In many cases, it may be advisable to publish only the results of the investigation to protect the privacy and reputation of the individuals concerned, as this may help to minimise any potential negative impact on them.
However, under certain circumstances or due to legal requirements, full disclosure of the investigation report may be required, especially if transparency and disclosure are necessary to maintain public or investor confidence.
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Brazil
Brazil
- at CGM
- at CGM
There is no legal requirement or recommendation for the company to share the full or partial report or findings. It is also not a recommended measure. Therefore, unless the internal rules determine that the company must do it, any answer to queries should be limited to the fact that the investigation was concluded, and the company took the appropriate action.
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Portugal
Portugal
- at Uría Menéndez - Proença de Carvalho
If the employee is accused by the employer, they will be entitled to consult the entire investigation report and not just the findings, as well as the witnesses' depositions, which should be in writing, and any other sources of information that were used by the employer
Even though the law is silent in this respect, courts have ruled that if this is not complied with, the employee’s right of defence would be deemed to be disrespected.
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Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In principle, there is no obligation to disclose the final investigation report. Disclosure obligations may arise based on data protection law vis-à-vis the persons concerned (eg, the accused). Likewise, there is no obligation to disclose other documents, such as the records of interviews. The employee should be fully informed of the final investigation report, if necessary, with certain redactions (see question 22). The right of the employee concerned to information is comprehensive (ie, all investigation files must be disclosed to him).[1] Regarding publication to other bodies outside of criminal proceedings, the employer is bound by its duty of care (article 328, Swiss Code of Obligations) and must protect the employee as far as is possible and reasonable.[2]
[1] Nicolas Facincani/Reto Sutter, Interne Untersuchungen: Rechte und Pflichten von Arbeitgebern und Angestellten, in: HR Today, to be found on: <Interne Untersuchungen: Rechte und Pflichten von Arbeitgebern und Angestellten | hrtoday.ch> (last visited on 27 June 2022).
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Contributors
Australia
People + Culture Strategies
Austria
GERLACH
Belgium
Van Olmen & Wynant
Brazil
CGM
China
Jingtian & Gongcheng
Finland
Roschier
France
Bredin Prat
Germany
Hengeler Mueller
Greece
Karatzas & Partners
Hong Kong
Slaughter and May
India
Trilegal
Ireland
Ogier
Italy
BonelliErede
Japan
Mori Hamada & Matsumoto
Netherlands
De Brauw Blackstone Westbroek
Nigeria
Bloomfield LP
Philippines
Villaraza & Angangco
Poland
WKB Lawyers
Portugal
Uría Menéndez - Proença de Carvalho
Singapore
Rajah & Tann Singapore
South Korea
Kim & Chang
Spain
Uría Menéndez
Sweden
Mannheimer Swartling
Switzerland
Bär & Karrer
Thailand
Chandler MHM
Turkey
Paksoy
United Kingdom
Slaughter and May
United States
Cravath, Swaine & Moore
Vietnam
Le & Tran Law Corporation
Contributors
Austria
GERLACH
Brazil
CGM
Portugal
Uría Menéndez - Proença de Carvalho
Switzerland
Bär & Karrer