Workplace Investigations

Dutch employment law does not provide for a timeframe within which an internal investigation must be launched. However, it is important for an employer who suspects abuse or irregularities, to start an internal investigation without delay. In essence, that means that as soon as management, or – depending on the specific circumstances – the person who is authorised to decide on disciplinary sanctions against a certain employee, becomes aware of a potential abuse or irregularity, all measures to initiate an internal investigation should be taken promptly. If this is not done, the employer may lose the opportunity to take certain disciplinary actions.

The legal framework relating to an investigation by an employer into the acts and omissions of an employee are determined by, among other things, section 7:611 of the Dutch Civil Code (DCC) that stipulates good employer practices; Section 7:660 DCC (right to give instructions to the employee); the European Convention on Human Rights; the Dutch Constitution; the General Data Processing Regulation; and, if the employer uses a private investigation agency, the Private Security Organisations and Detective Agencies Act and the Privacy Code of Conduct for Private Investigation Agencies.

The legal basis from which the employer derives the authority to investigate can be based on the employer's right to give instructions (section 7:660 DCC). Pursuant to this section, the employer has – to a certain extent – the right to give instructions to the employee “which are intended to promote good order in the undertaking of the employer”. In many cases, an investigation of a work-related incident will aim to promote good order within the company. As such, the investigation is trying to:

• find the truth;
• sanction the perpetrator; and
• prevent repetition.

Instructing an employee to cooperate with an internal investigation falls within the scope of the right to instruct.

Subsequently, the employer must behave as a good employer during the investigation, pursuant to section 7:611 DCC. This is coloured by the classic principles of careful investigation: the principle of justification, the principle of trust, the principle of proportionality, the principle of subsidiarity and the principle of equality. Furthermore, the principle of hearing both sides of the argument applies and there must be a concrete suspicion of wrongdoing.

Spain has not passed any statutes, regulations or policies specifically governing workplace investigations. Instead, general employment and data protection legislation, which safeguards employees’ rights, is fully applicable during these types of enquiries.

These statutes focus on employee privacy. As a result, the application of this legislation:

• limits the matters that may be investigated: they have to be relevant to the employment relationship and there has to be a legitimate reason to conduct the enquiry;
• sets boundaries to the means that may be lawfully used by the company in the investigation: they must be the least intrusive means for employees’ rights (for instance, an email review should be a last resort, reserved for when less-invasive means are not available or would not be effective); and
• states that the companies’ decisions during the investigation must be proportional in light of the facts under review and the legal consequences attached to them.

Collective bargaining agreements, which in Spain generally apply to every company within their scope of application (normally a given economic sector), may regulate workplace investigations. However, it is unusual for collective bargaining agreements to regulate workplace investigations.

Finally, major international corporations with a presence in Spain do tend to have an ethics or whistleblowing policy that governs how an investigation should be conducted. Even if these are self-imposed policies, they are contractually binding and, once established, must be respected by companies.

There are a lot of possibilities for grievances that employees can raise during an investigation. A grievance, for instance, could be that a certain person is not interviewed, while the employee wanted this person to be interviewed in order to have a thorough investigation. In such a case the investigator needs to assess this grievance.

There is no general rule how to react to a grievance and there is also no general obligation to respond to a grievance. There needs to be a case by case assessment based on which further action is or isn't needed.

Spanish law does not regulate grievance processes and most companies do not have an internal grievance procedure. The only way in which an employee can formally challenge an investigation is by filing a lawsuit or lodging a claim with the Labour Inspectorate (see question 5).

To the extent that the company can show that the investigation is unrelated to the complaint (ie, that the investigation is not retaliation for filing the complaint), the claim should be seen as neutral from the perspective of the enquiry.