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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27. What legal exposure could the employer face for errors during the investigation?
27. What legal exposure could the employer face for errors during the investigation?
Brazil
Brazil
- at CGM
- at CGM
The employer’s legal exposure resulting from errors during the investigation depends on the error and the victim or victims affected. It may range from paying damages to a witness who was harassed because the company did not prevent retaliation from occurring; to the reversal of a termination for cause if a court determines that the evidence collected during the investigation did not meet the legal threshold to uphold it; to indemnification for a violation of privacy; or criminal prosecution because of unauthorised access to private communications.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
As there are no specific regulations for internal investigations, the usual legal framework within which the employer must act towards the employee derives from general rules such as the employer's duty of care, the employee's duty of loyalty and the employee's data protection rights.
But, for example, unwarranted surveillance could conceivably result in criminal liability (article 179 et seq, Swiss Criminal Code) for violations of the employee's privacy. Furthermore, errors made by the employer could have an impact on any later criminal proceedings (eg, in the form of prohibitions on the use of evidence).[1]
Evidence obtained unlawfully may only be used in civil proceedings if there is an overriding interest in establishing the truth (article 152 paragraph 2, Swiss Civil Procedure Code). Consequently, in each case, a balance must be struck between the individual’s interest in not using the evidence and in establishing the truth.[2] The question of the admissibility of evidence based on an unlawful invasion of privacy is a sensitive one – admissibility in this case is likely to be accepted only with restraint.[3] Since the parties in civil proceedings do not have any means of coercion at their disposal, it is not necessary, in contrast to criminal proceedings, to examine whether the evidence could also have been obtained by legal means.[4]
Unlawful action by the employer may also have consequences on future criminal proceedings: The prohibitions on exploitation (article 140 et seq, Swiss Criminal Procedure Code) apply a priori only to evidence obtained directly from public authorities. Evidence obtained unlawfully by private persons (ie, the employer) may also be used if it could have been lawfully obtained by the authority and if the interest in establishing the truth outweighs the interest of the individual in not using the evidence.[5] Art. 140 paragraph 1 Swiss Criminal Procure Code remains reserved: Evidence obtained in violation of Art. 140 paragraph 1 Swiss Criminal Procure Code is subject to an absolute ban on the use of evidence (e.g. evidence obtained under the use of torture[6]).[7]
[1] Cf. ATF 139 II 7.
[2] ATF 140 III 6 E. 3
[3] Pascal Grolimund in: Adrian Staehelin/Daniel Staehelin/Pascal Grolimund (editors), Zivilprozessrecht, Zurich/Basel/Geneva 2019, 3rd Edition, §18 N 24a.
[4] Pascal Grolimund in: Adrian Staehelin/Daniel Staehelin/Pascal Grolimund (editors), Zivilprozessrecht, Zurich/Basel/Geneva 2019, 3rd Edition, §18 N 24a.
[5] Decision of the Swiss Federal Court 6B_1241/2016 dated 17. July 2017 consid. 1.2.2; Decision of the Swiss Federal Court 1B_22/2012 dated 11 May 2012 consid. 2.4.4.
[6] Jérôme Benedict/Jean Treccani, CR-CPP Art. 140 N. 5 and Art. 141 N. 3.
[7] Yvan Jeanneret/André Kuhn, Précis de procédure pénale, 2nd Edition, Berne 2018, N 9011.
United Kingdom
United Kingdom
- at Slaughter and May
- at Slaughter and May
A reasonable investigation is a key component of a fair disciplinary process. Errors in the investigation could therefore expose the employer to liability for unfair dismissal under ERA 1996.
Failure to follow the ACAS Code does not automatically make an employer liable in any proceedings taken against it. However, an employment tribunal will take the ACAS Code into account when deciding whether an employer has behaved fairly, and has the power to increase awards by up to 25% where it believes an employer has unreasonably failed to follow the ACAS Code's provisions.
There may be liability for breach of the employee’s contract of employment if the employer breaches aspects of the investigation policy that are contractual, any contractual provisions relating to suspension, or otherwise conducts the investigation in a manner that breaches the implied term of trust and confidence.
There may be liability under the EA 2010 if the investigation is conducted in a discriminatory manner, which could include not making reasonable adjustments to the process for disabled employees.
Where the investigation involves protected disclosures, there may be liability under the whistleblowing provisions of ERA 1996 if the whistleblower is subjected to detriment or dismissal on the grounds of their protected disclosures.
Improper evidence gathering or processing may be actionable under the DPA 2018, IPA 2016 or the IP Regs 2018.
Finally, there may be common law claims in some circumstances (for example where reports need to be made to regulators, which in turn may affect the relevant employee’s future employment prospects) for defamation, or, more unusually, for stress-related personal injury.