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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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?
Italy
Italy
- at BonelliErede
- at BonelliErede
In general, employees must cooperate with a workplace investigation (as it is part of their general duty of diligence, as provided under article 2104 of the Italian Civil Code), and this may also include a duty to act as a witness.
In this respect, it must be pointed out that, even if the employee has a contractual duty to provide information requested by the employer, one limit to this principle could be, for example, self-incrimination.
However, caution is necessary during the interviews both with the employee under investigation and with co-workers, to avoid the risk of transforming the interview into what could be considered the de facto start of a disciplinary procedure. In other words, during the interview, the employer should only gather information on certain facts, and not put forward charges against the employee; otherwise, this could prevent or limit the employer’s possibility to take disciplinary action regarding the same facts.
Furthermore, employees who cooperate within the workplace investigation must be protected against any retaliatory action directly or indirectly linked to their testimony (eg, as far as is possible, anonymity should be guaranteed, and disciplinary measures should apply to those who breach measures in place to protect the employee).
Apart from workplace investigations, employees are protected against retaliatory measures of any kind, which are always null and void and subject to appeal.
For a defensive criminal law investigation (see par. 4), the witness can refuse to testify; in this case, the criminal law lawyer may ask the prosecutor to interview the witness.
Netherlands
Netherlands
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
There is no statutory regime for employee witnesses in internal (workplace) investigations and, hence, no specific statutory regime for legal protection. However, as part of the idea that employees have to act in line with good employment practices (section 7:611 DCC), employees, who potentially acquired knowledge in a work-related context on the subject matter of an investigation, are typically required vis-à-vis their employer to participate in such internal investigations. The required degree of cooperation will depend on the type and nature of the investigation and the matter that is being investigated. The principle of “good employment practices” in turn requires the employer to be guided by proportionality and subsidiarity considerations: which information is relevant to the investigation and what is the least burdensome means of collecting such information?
This may also impact the degree to which an employer can involve employee witnesses in an investigation. Increased prudence should be observed, among other things, if the relevant employee witnesses may themselves become implicated in the investigation or when the employer envisages sharing certain investigative findings with regulatory or criminal authorities, for instance as part of cooperation arrangements in an ongoing investigation. In such cases, the relevant employee should at least be allowed to retain legal counsel before continuing interview procedures.
24. What next steps are available to the employer?
24. What next steps are available to the employer?
Italy
Italy
- at BonelliErede
- at BonelliErede
Upon completion of the investigation, the employer – if misconduct by the employee emerges – may bring disciplinary action against him or her (which may be either dismissal or a “conservative” measure such as an oral or written warning, a fine, or a suspension, within the limits provided under the law and possibly the applicable NCBA).
If a criminal offence by the employee emerges, the employer may also decide to report the crime to the public authorities (see question 25).
Netherlands
Netherlands
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
A distinction can be made between a non-public reprimand and a public reprimand. A non-public reprimand is a warning from the employer to the employee that certain behaviour by the employee may not be repeated. This is a relatively light measure. The employer can apply this measure to behaviour for which a verbal warning is insufficient or has already been given (more than once). The employer should confirm the reprimand to the employee in writing, so that it forms part of the employee's personnel file. It is important to have an acknowledgement so there is no dispute as to whether the reprimand has reached the employee. Often, the letter will also mention the consequences if the employee continues to behave in this way, so that the employee is aware of them. The employer then has reasonable grounds to apply a more severe disciplinary measure, such as suspension or dismissal, should the behaviour be repeated.
For a public reprimand, the warning is also made known to third parties. This is, therefore, a more severe measure than a non-public reprimand, as the honour and reputation of the employee are affected. A public reprimand must, therefore, be proportionate to the seriousness of the behaviour and will only be possible in the event of a serious offence, for which a non-public warning will not suffice. A public reprimand is also more likely if it is necessary to prevent other employees from engaging in the same behaviour (deterrent effect). Given the impact on the employee, it is important that the employer carefully investigates the facts and allows the employee to tell their side of the story (hearing both sides of the argument). A public reprimand is rarely given.
If the outcome of the investigation is that the employee is culpable, the employer can request that the court dissolves the employment agreement for that reason. The employer will have to show that continuation of the employment agreement is no longer possible. If the court rules that the employee is culpable, the employment agreement will be dissolved, observing the relevant notice period and paying the statutory transition payment. Only if the court rules that the employee has shown serious culpable behaviour, will the notice period not be taken into account and the transition payment will not be due.
If the employee has come into contact with the judicial authorities or is suspected of a criminal offence, but has not been convicted or detained (yet), the employer – when requesting the dissolution of the employment contract – will have to make a plausible case that, based on this suspicion alone, it can no longer be reasonably expected that the employment contract is upheld. This may be the case in a situation where the offence the employee is suspected of has repercussions on the employer, colleagues or customers and relations of the employer. In this situation, the court will assess whether a less drastic measure than dismissal, such as suspension, is sufficient to the interests of the employer.
If there is still no conviction but the employee is unable to perform his or duties due to being detained, the court reviews a request for dissolution in the same way as above. In this case, if the employee's payment of wages is discontinued, justice may already have been done to the employer's interests.
The final stage involves the conviction and detention of the employee. Although the dissolution of the employment contract under section 7:669 (3) under h DCC – which includes conviction and detention – is the most obvious option, it is still necessary to assess whether termination of the employment contract is reasonable because of the employee's conviction and detention. Although the seriousness of the offence, the duration of the detention and how this reflects on the employer are important factors, the court also takes the age, duration of the employment contract and the position of the employee on the labour market into account.
The most far-reaching dismissal method that can be considered is instant dismissal for an urgent reason (section 7:678 paragraph 1 in conjunction with section 7:677 paragraph 1 DCC). According to the case law of the Dutch Supreme Court, the question of whether there are compelling reasons must be answered based on all the circumstances of the case – to be considered together – including the nature and seriousness of what the employer considers to be compelling reasons, the nature and duration of the employment, how the employee performed their duties and the personal circumstances of the employee, such as age and the consequences for the employee of an instant dismissal.
Mere suspicion of a criminal offence will not easily qualify as an urgent reason, as follows from jurisprudence. At the same time, an employer can, instead of criminal suspicion as grounds for dismissal, also base its claim on the behaviour that underlies it. If the behaviour of the employee is already factually established, for example, because the employee has disclosed it to their employer or the employer has established it, the employer does not have to wait for the criminal proceedings before dismissing the employee.