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.
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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)?
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Italy
Italy
- at BonelliErede
- at BonelliErede
In general, from an Italian employment law perspective, there is no specific legal rule governing the suspension of an employee during a workplace investigation.
However, it should be noted that:
- certain National Collective Bargaining Agreements (NCBAs) may provide, in particular circumstances, for the possibility of suspending (with pay) an employee (eg, when the employee is under criminal proceedings – as stated, for example, in the NCBA for executives of credit, financial and investment companies);
- according to well-established case law, the employer may suspend the employee from work (with pay) in the framework of a disciplinary procedure (which, according to Italian law, must be followed before applying any disciplinary sanction, including dismissal[1]), where the facts behind the procedure are sufficiently serious;
- certain case-law decisions have also stated that – even in the absence of a disciplinary procedure – the employer may suspend (with pay) the employee when it has very serious suspicions of an employee’s unlawful conduct, and for the time that is strictly necessary to ascertain his or her liability.
The above may be done by the employer, for instance, if keeping the employee in service may cause a risk of tampering with evidence or a risk of damage to the physical safety of other employees or company property.
Normally, in the above-mentioned circumstances, the suspension is with pay and with job security.
[1] The steps of the disciplinary procedure can be summarised as follows: (i) the employer must send a letter to the employee in which the disciplinary facts are described in detail and precisely; (ii) the employee can submit his written or oral defence to the employer within five days from receiving the letter (or different term provided under applicable collective bargaining); during this period, the employer cannot take any punitive measures against the employee; (iii) after receiving the employee’s defence (or, if the employee has not submitted any defence within the relevant term), the employer may serve the executive with a notice of dismissal (certain NCBAs set a term within which a sanction, if any, should be applied by the employer). Failure to comply with the procedure results in the dismissal being null and void. According to the law, the dismissal takes effect from the commencement of the disciplinary procedure itself.
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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.
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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
Italy
BonelliErede
Switzerland
Bär & Karrer