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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Choose the questions you would like answering, or choose all for the full picture.
01. What legislation, guidance and/or policies govern a workplace investigation?
01. What legislation, guidance and/or policies govern a workplace investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Before commencing a workplace investigation, an employer must review the terms of any applicable employment contract, policy, procedure or industrial instrument. These documents will likely contain clauses that will dictate the investigation process.
There is also a significant body of common law that dictates how an investigation should be conducted and the procedural fairness that should be afforded to those involved. To ensure a workplace investigation is procedurally fair, employers must consider several factors, including:
- putting all allegations to the respondent in a manner which does not suggest a pre-determination of the outcome;
- conducting the investigation in a timely manner;
- providing the respondent with the opportunity to respond to the allegations;
- conducting a fair investigation process;
- making an unbiased (and not pre-determined) decision; and
- permitting the respondent and complainant to involve a support person or union representative.
Employers should also consider the additional steps they can take to conduct a best-practice investigation, including:
- being thorough and taking the time to plan the investigation;
- communicating clearly and fairly;
- considering whether the allegations are indicative of a wider workplace behaviour problem;
- maintaining confidentiality; and
- preventing victimisation.
Finland
Finland
- at Roschier
- at Roschier
Mainly, the Occupational Safety and Health Act (738/2002). In addition, the following also have relevance in connection to a workplace investigation: the Employment Contracts Act (55/2001), the Criminal Code (39/1889), the Act on Occupational Safety and Health Enforcement and Cooperation on Occupational Safety and Health at Workplaces (44/2006), the Act on Equality between Women and Men (609/1986) and the Non-discrimination Act (1325/2014). In addition, the employer's own policies must be taken into consideration while conducting a workplace investigation.
Nigeria
Nigeria
- at Bloomfield LP
- The Constitution of the Federal Republic of Nigeria, 1999 (as amended)
- The Criminal Code Act
- Penal Code Law
- Money Laundering (Prohibition) Act 2011 (as amended)
- Freedom of Information Act 2011
- Terrorism (Prevention) Act 2013
- Independent Corrupt Practices and other related offences Act 2000
- Code of Conduct Bureau and Tribunal Act
- Companies and Allied Matters Act 2020
- Nigerian Code of Corporate Governance 2018
- Economic Financial Crime Commission (Establishment) Act 2004
- Investment Securities Act 2007
- Central Bank of Nigeria Act 2007
- Banks and Other Financial Institutions Act 2020
- Whistleblowing Programme under the Ministry of Finance
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
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.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
There is no specific legal regulation for internal investigations in Switzerland. The legal framework is derived from general rules such as the employer's duty of care, the employee's duty of loyalty and the employee's data protection rights. Depending on the context of the investigation, additional legal provisions may apply; for instance, additional provisions of the Swiss Federal Act on Data Protection or the Swiss Criminal Code.
02. How is a workplace investigation usually commenced?
02. How is a workplace investigation usually commenced?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
A workplace investigation will generally be triggered by an employee making a complaint; however, issues may also be brought to the attention of an employer through an anonymous tip, by suppliers or contractors, from customers or because of observations and hearsay.
Complaints can be made directly to Human Resources (HR), anonymously, by email to a line manager or a third party. While complaints do not need to be written and can be informal, brief or verbal, complaints of this nature can make the process harder and more information may be required.
The receipt of a complaint does not necessarily mean that an employer needs to undertake an investigation immediately. A grievance policy ordinarily contains a multi-step approach to dealing with complaints, starting with internal resolution options such as informal discussions, conciliation and mediation. However, an investigation should be commenced where:
- the complaint alleges serious misconduct or unlawful conduct;
- the employer is required to conduct a workplace investigation as per an employment contract, policy, procedure or industrial instrument; or
- the complaint is complex and requires clarity on what has occurred to establish the facts.
Finland
Finland
- at Roschier
- at Roschier
When the employer becomes aware of possible misconduct, the employer must commence an investigation immediately, in practice within about two weeks. The information may come to the employer's knowledge via, for example, the employer's own observations, from the complainant or their colleagues or an employee representative.
Nigeria
Nigeria
- at Bloomfield LP
A workplace investigation is conducted to verify alleged misconduct within a workplace.[1] Once a complaint is made regarding wrongdoing, misconduct or unethical behaviour by an employee or group of employees within a workplace, an investigation is required to confirm the complaint and if it is confirmed, the body in charge of supervising the employees (usually the HR specialist, disciplinary committee or line managers) determine and implement necessary corrective or disciplinary actions.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
Given that Spain lacks legislation in this area (see question 1), each company commences workplace investigations following its internal guidelines, policies or practices, if any. In our experience, investigations begin with a formal decision to commence the enquiry, which is set out in writing for record-keeping purposes.
This decision will normally mention:
- the facts that will be investigated;
- the reasons to investigate the facts (eg, they could be a breach of company policies);
- how the investigation will be conducted; and
- the individuals who will conduct the enquiry.
Depending on the company, the decision to initiate the investigation may take the form of a decision by the competent employee or officer (ethics or compliance officer) or the minutes of the relevant corporate body (board of directors or compliance committee).
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Internal investigations are usually initiated after reports about possible violations of the employer's code of conduct, applicable laws or regulations have been submitted by employees to their superiors, the human resources department or designated internal reporting systems such as hotlines (including whistleblowing hotlines).
For an internal investigation to be initiated, there must be a reasonable suspicion (grounds).[1] If no such grounds exist, the employer must ask the informant for further or more specific information. If no grounds for reasonable suspicion exists, the case must be closed. If grounds for reasonable suspicion exist, the appropriate investigative steps can be initiated by a formal investigation request from the company management.[2]
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)?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
It is an important consideration as to whether any of the employees involved in the investigation should be suspended, stood down or asked to undertake alternative duties for the period of the investigation. This decision will need to be made taking into consideration the nature of the complaint, any further damage to workplace relationships that could be caused by employees continuing to interact with each other, and potential work, health and safety issues.
It should not be automatic that the respondent is suspended as the employer will need to consider whether this is necessary in the circumstances. However, a period of suspension should be considered where:
- the allegations involve serious misconduct;
- there is a risk that the conduct will continue throughout the investigation;
- the respondent’s presence could exacerbate the situation; or
- the respondent’s presence could be disruptive to the investigation.
As an alternative to suspension, other options include working from home, performing amended duties or moving to a different workspace.
If an employee is suspended then they should ordinarily receive their full pay for this period. There are some exceptions to this, for example, if the employee is a casual employee or if a policy, employment contract or other industrial instrument allows the employee to be suspended without pay.
Generally, there is no minimum or maximum period a suspension should last, as this will depend on the length of the investigation.
Finland
Finland
- at Roschier
- at Roschier
There is no legislation on temporary suspension in the event of a workplace investigation or similar. In some situations, the employer may relieve the employee from their working obligation with pay for a short period.
Nigeria
Nigeria
- at Bloomfield LP
Yes, an employee can be suspended during an investigation to allow the employer to investigate the allegations against the employee unhindered and without undue interference by that employee. A suspension under the law merely prevents the employee from discharging the ordinary functions of his or her role without any deprivation of his rights during the period of the suspension. Thus, unless there is an express provision in the contract of employment or employee’s handbook stating that the employee can be suspended with or without half pay, the employee would be entitled to a full salary.
Further, the duration for which the employee may be suspended should be as contained in the employee’s contract, employee’s handbook, or letter of suspension.
In the recent case of GLOBE MOTORS HOLDINGS NIGERIA LIMITED v. AKINYEMI ADEGOKE OYEWOLE (2022), the court held, “Since suspension is not a termination of the employment contract nor a dismissal of the employee, the implication is that the employee is still in continuous employment of the employer until he is recalled or formally terminated or dismissed. Pending his recall or dismissal, a suspended employee is entitled to his wages or salary during the period of suspension, unless the terms of the contract of employment or the letter of suspension itself is specific that the suspended employer will not be paid salaries during the period of suspension”.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
Yes, a company may suspend an employee if it has valid grounds to believe that keeping an employee under investigation in his or her position during the enquiry could obstruct the investigation or become an obstacle to it (for example, the employee could try to conceal facts or influence other employees within the organisation).
The decision to suspend the employee must be communicated in writing. This will usually take the form of a suspension letter that explains the reasons that have led to the suspension, its expected duration and that the suspension is not a disciplinary measure. Since the suspension is not a disciplinary measure, the employee would be entitled to continue collecting his or her standard remuneration during the suspension.
In Spain, employees have the right to be effectively occupied during their employment. Therefore, the duration of the suspension should be limited in time to what is strictly necessary to avoid what led to the suspension in the first place.
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.
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Once the decision to undertake a workplace investigation has been made, it is important to decide who is the most appropriate person to conduct the investigation. For the investigation process to run smoothly a single lead investigator should be selected, although they may work with a larger team. The lead investigator and investigation team can be internally or externally appointed.
In deciding whether to appoint an external investigator an employer should consider:
- the nature of the allegations;
- the seniority of the respondent;
- whether a fair investigation can be conducted internally without any actual or perceived bias;
- whether there is a dedicated HR department with someone who has the required capability, skills and experience to conduct the investigation; and
- whether the employer wants the investigation to be covered by legal professional privilege.
If the employer decides to investigate the matter internally without appointing a third party, then the investigator does not need to have any specific qualifications. However, it is prudent to confirm that the investigator has the time and skills to conduct the investigation and that they can be objective.
Finland
Finland
- at Roschier
- at Roschier
The employer must conduct the investigation, but the actual work can be done either by the employer's personnel or by an external investigator, for example, a law firm. Either way, there are no formal criteria for the persons executing the investigation; however, impartiality is required from the person conducting the investigation
Nigeria
Nigeria
- at Bloomfield LP
Typically, the legal department, the chief compliance officer, the HR manager, the audit committee or any other committee as may be set up by the company may conduct a workplace investigation. However, in other instances, the company may engage the services of independent external personnel to assist with conducting an internal investigation.
The minimum qualification or criteria of the person conducting the investigation should be as contained in the relevant company policies. Criteria may include independence, objectivity and impartiality.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
As set out in question 1, workplace investigations must be proportional and companies must use the least intrusive means to affect employees’ rights. This translates into the following principles on who conducts the investigation:
- the enquiry must involve a minimal number of employees;
- only those employees with competencies on the investigated matters should be involved (normally human resources or compliance); and
- employees conducting the investigation must be qualified and have the power and seniority to do so proficiently (although a formal qualification is not required).
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The examinations can be carried out internally by designated internal employees, by external specialists, or by a combination thereof. The addition of external advisors is particularly recommended if the allegations are against an employee of a high hierarchical level[1], if the allegations concerned are quite substantive and, in any case, where an increased degree of independence is sought.
[1] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 18.
05. Can the employee under investigation bring legal action to stop the investigation?
05. Can the employee under investigation bring legal action to stop the investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
The respondent has several rights including the right to have the complaint investigated in a fair, impartial and adequate manner, to hear the allegations in full and to not be victimised. However, there is no avenue for a respondent to bring legal action to stop a procedurally fair investigation.
In 2014, Australia introduced an anti-bullying jurisdiction which gave the Fair Work Commission (FWC) the powers to issue a Stop Bullying Order. There have been circumstances where it has been successfully argued that an investigation itself amounted to bullying and accordingly the respondent applied to the FWC for a Stop Bullying Order to suspend the investigation.
Finland
Finland
- at Roschier
- at Roschier
The employee does not have a legal right to stop the investigation. The employer must fulfil its obligation to investigate the alleged misconduct.
Nigeria
Nigeria
- at Bloomfield LP
Generally, issues surrounding workplace investigations are usually embedded in either the employee’s contract or handbook, which is binding on the employee. Thus, an employee cannot validly bring an action to stop the investigation unless his rights as guaranteed by the Constitution, the Employee’s handbook, and other laws such as a right to a fair hearing are violated during the investigation.
Consequently, the employee may apply to the National Industrial Court for an order of interim relief against his or her employer restraining further prejudicial investigation.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
No, an employee under investigation has no direct legal option to stop an investigation. This is because conducting an enquiry is within the employers’ legally acknowledged powers, attached to their capacity to manage their business and enforce employment contracts and internal policies.
Notwithstanding the above, if the investigation breaches an employee’s rights (privacy, dignity, remuneration, etc), the individual could:
- file a lawsuit aimed at stopping said breach (and potentially seeking an award for damages); or
- file a claim with the Labour Inspectorate with the same purpose.
The result, in this case, would stop the enquiry.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The accused could theoretically request a court to stop the investigation, for instance, by arguing that there is no reason for the investigation and that the investigation infringes the employee's personality rights. However, if the employer can prove that there were grounds for reasonable suspicion and is conducting the investigation properly, it is unlikely that such a request would be successful.
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?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Co-workers can be interviewed as part of an investigation where they are witnesses to a complaint. If the employee refuses to attend the interview or is generally not cooperating with the investigation, the reasons for this will need to be considered carefully by the employer. Employers should consider whether there can be any amendments made to the interview process to accommodate the employee. However, an employer can make a reasonable and lawful direction to an employee to attend an interview. If an employee fails to comply with a lawful and reasonable direction, then it may constitute grounds for disciplinary action.
Witnesses who are employees are entitled to the legal protections that ordinarily attach to their employment, including not being bullied, discriminated against, or harassed and having their health and safety protected. Employers should also ensure that witnesses are not victimised as a result of participating in the investigation and that confidentiality is maintained.
Finland
Finland
- at Roschier
- at Roschier
There is no legislation on a witness's role in investigations. However, the legislation on occupational safety requires that employees must report any irregularities they observe. Depending on the situation, participating in the investigation may also be part of the person's work duties, role or position, in which case the employer may require the employee to contribute to clarifying the situation. However, there is no formal obligation to act as a witness, and there is no legislation regarding the protection of witnesses. If a witness wishes, they may have, for example, an employee representative as a support person during the hearing.
Nigeria
Nigeria
- at Bloomfield LP
The employee’s contract, employee handbook or company policies typically mandate an employee to cooperate and participate in good faith in any lawful internal investigation undertaken by the company, and also protects an employee acting as a witness in an internal investigation. Some of the legal protections available to an employee acting as a witness during workplace investigations are freedom from intimidation, threats or the loss of employment.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
A company cannot force an employee to actively take part in a workplace investigation or to act as a witness. However, if a co-worker’s decision not to collaborate could be construed as an attempt to conceal evidence of wrongdoing, the company could then enforce disciplinary measures for this reason.
In our experience, employees tend to collaborate during workplace investigations and no retaliatory action can be taken against them for this reason. For example, if an employee provided evidence against his or her direct manager, the manager could not reprimand the employee or take any action that could be construed as such.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Due to the employee's duty of loyalty towards the employer and the employer's right to give instructions to its employees, employees generally must take part in an ongoing investigation and comply with any summons for questioning if the employer demands this (article 321d, Swiss Code of Obligations). If the employees refuse to participate, they generally are in breach of their statutory duties, which may lead to measures such as a termination of employment.
The question of whether employees may refuse to testify if they would have to incriminate themselves is disputed in legal doctrine.[1] However, according to legal doctrine, a right to refuse to testify exists if criminal conduct regarding the questioned employee or a relative (article 168 et seq, Swiss Criminal Procedure Code) is involved, and it cannot be ruled out that the investigation documentation may later end up with the prosecuting authorities (ie, where employees have a right to refuse to testify in criminal proceedings, they cannot be forced to incriminate themselves by answering questions in an internal investigation).[2]
[1] Nicolas Facincani/Reto Sutter, Interne Untersuchungen: Rechte und Pflichten von Arbeitgebern und Angestellten, published on hrtoday.ch, last visited on 17 June 2022.
[2] Same opinion: Nicolas Facincani/Reto Sutter, Interne Untersuchungen: Rechte und Pflichten von Arbeitgebern und Angestellten, published on hrtoday.ch, last visited on 17 June 2022.
07. What data protection or other regulations apply when gathering physical evidence?
07. What data protection or other regulations apply when gathering physical evidence?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
As part of an investigation, the investigator may want to collect evidence such as camera footage from CCTV, swipe card records, computer records, telephone records or recordings and GPS tracking. There are state-based workplace surveillance laws that operate in each jurisdiction in Australia. The laws recognise that employers are justified in monitoring workplaces for proper purposes, but this is balanced against employees’ reasonable expectations of privacy.
The Privacy Act 1988 (Cth) (Privacy Act) also regulates how certain organisations handle personal information, sensitive personal information and employee records. The Privacy Act contains 13 privacy principles that regulate the collection and management of information. Employers should familiarise themselves with the privacy principles before conducting any investigation to ensure they are not in breach when gathering evidence.
Finland
Finland
- at Roschier
- at Roschier
Generally, the basic principles set out by the GDPR and the Finnish Data Protection Act apply to data processing in connection with investigations, including evidence gathering: there must be a legal basis for processing, personal data may only be processed and stored when and for as long as necessary considering the purposes of processing, etc.
Additionally, if physical evidence concerns the electronic communications (such as emails and online chats) of an employee, gathering evidence is subject to certain restrictions based on Finnish ePrivacy and employee privacy laws. As a general rule, an employee’s electronic communications accounts, including those provided by the employer for work purposes, may not be accessed and electronic communications may not be searched or reviewed by the employer. In practice, the employer may access such electronic correspondence only in limited situations stipulated in the Act on Protection of Privacy in Working Life (759/2004), or by obtaining case-specific consent from the employee, which is typically not possible in internal investigations, particularly concerning the employee suspected of wrongdoing.
However, monitoring data flow strictly between the employee and the employer's information systems (eg, the employee saving data to USB sticks, using printers) is allowed under Finnish legislation, provided that employee emails, chats, etc, are not accessed and monitored. If documentation is unrelated to electronic communications, it also may be reviewed by the employer. Laptops, paper archives and other similar company documentation considered "physical evidence" may be investigated while gathering evidence on the condition that any private documentation, communications, pictures or other content of an employee are not accessed.
Nigeria
Nigeria
- at Bloomfield LP
When gathering evidence, the person being investigated is protected by the Constitution, the Freedom of Information Act and the Nigerian Data Protection Regulation (NDPR), among others.
The Constitution, particularly section 37, guarantees the right of a person to privacy.
The NDPR is the main data protection regulation in Nigeria. It regulates the processing and transfer of personal data.
Further, the Freedom of Information Act, 2011 prohibits the disclosure of information gathered during an investigation to the public.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
The General Data Protection Regulation and the Spanish Data Protection Law apply when gathering any type of evidence, including physical evidence. This means that companies may only process personal data when they have lawful grounds to do so and within the limits set forth for special categories of personal data (health, union affiliation, criminal records, etc.).
The Spanish Statute of Workers specifically states that employees and their possessions may be registered when it is necessary to protect the companies’ property (or the property of other co-workers). This registration must:
- be conducted in the workplace and during working hours;
- respect the employee’s privacy and dignity; and
- be performed in front of an employee representative or, if not possible, in the presence of another employee of the company.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The Swiss Federal Act on Data Protection applies to the gathering of evidence, in particular such collection must be lawful, transparent, reasonable and in good faith, and data security must be preserved.[1]
It can be derived from the duty to disclose and hand over benefits received and work produced (article 321b, Swiss Code of Obligations) as they belong to the employer.[2] The employer is, therefore, generally entitled to collect and process data connected with the end product of any work completely by an employee and associated with their business. However, it is prohibited by the Swiss Criminal Code to open a sealed document or consignment to gain knowledge of its contents without being authorised to do so (article 179 et seq, Swiss Criminal Code). Anyone who disseminates or makes use of information of which he or she has obtained knowledge by opening a sealed document or mailing not intended for him or her may become criminally liable (article 179 paragraph 1, Swiss Criminal Code).
It is advisable to state in internal regulations that the workplace might be searched as part of an internal investigation and in compliance with all applicable data protection rules if this is necessary as part of the investigation.
08. Can the employer search employees’ possessions or files as part of an investigation?
08. Can the employer search employees’ possessions or files as part of an investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
The starting position is that there is no general right for an employer to search an employee’s possessions. However, an employer may be able to undertake a search in circumstances where:
- the employee consents to the search;
- there is a “right to search” contained in a contract, policy, procedure or industrial instrument; or
- the request to search constitutes a lawful and reasonable direction.
If an employee agrees to a search of their possessions, this consent should be confirmed in writing. If the employee does not consent then the employer can issue a direction to the employee. If the direction is lawful and reasonable, and the employee does not comply, then disciplinary action may be considered.
Finland
Finland
- at Roschier
- at Roschier
Only the police can search employees' possessions (assuming that the prerequisites outlined in the legislation are met).
Nigeria
Nigeria
- at Bloomfield LP
Yes, an employer can search the possessions or files of an employee as part of an investigation where the employee’s contract or handbook authorises such a search and there is a reasonable suspicion of wrongdoing.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
Please see question 7.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The basic rule is that the employer may not search private data during internal investigations.
If there is a strong suspicion of criminal conduct on the part of the employee and a sufficiently strong justification exists, a search of private data may be justified.[1] The factual connection with the employment relationship is given, for example, in the case of a criminal act committed during working hours or using workplace infrastructure.[2]
[1] Claudia Fritsche, Interne Untersuchungen in der Schweiz: Ein Handbuch für regulierte Finanzinstitute und andere Unternehmen, Zürich/St. Gallen 2013, p. 168.
[2] Claudia Fritsche, Interne Untersuchungen in der Schweiz: Ein Handbuch für regulierte Finanzinstitute und andere Unternehmen, Zürich/St. Gallen 2013, p. 168 et seq.
09. What additional considerations apply when the investigation involves whistleblowing?
09. What additional considerations apply when the investigation involves whistleblowing?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
A complaint will be a whistleblowing complaint where a complainant has reasonable grounds to suspect that the information they are disclosing about the organisation concerns misconduct or an improper state of affairs or circumstances. The information can be about the organisation or an officer or employee of the organisation engaging in conduct that:
- breaches the Corporations Act 2001 (Cth);
- breaches other financial sector laws;
- breaches any other law punishable by 12 months’ imprisonment; or
- represents a danger to the public or the financial system.
Since 2020, all public companies, large proprietary companies and trustees of registrable superannuation entities in Australia are required to have a whistleblower policy. Employers conducting an investigation will need to follow the processes outlined in their policy.
One of the key differences when conducting an investigation that involves whistleblowing is identity protection and the ability of the whistleblower to disclose anonymously and remain anonymous.
Finland
Finland
- at Roschier
- at Roschier
In respect of data protection, the processing of personal data in whistleblowing systems is considered by the Finnish Data Protection Ombudsman (DPO) as requiring a data protection impact assessment (DPIA).
Nigeria
Nigeria
- at Bloomfield LP
Consideration must be given to the confidentiality or anonymity of the whistleblower, when an investigation involves whistleblowing.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
Directive (EU) 2019/1937 of the European Parliament and of the Council, of 23 October 2019, on the protection of persons who report breaches of Union law, has been implemented in Spain through Law 2/2023 (Ley 2/2023, de 20 de febrero, reguladora de la protección de las personas que informen sobre infracciones normativas y de lucha contra la corrupción). This law limits the capacity of companies to retaliate or to take any action against employees who report workplace violations or breaches of the law. Any action taken against an employee in such a position would be considered null and void if challenged in court.
Spanish law allows anonymous reports to protect whistleblowers from retaliation.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
If an employee complains to his or her superiors about grievances or misconduct in the workplace and is subsequently dismissed, this may constitute an unlawful termination (article 336, Swiss Code of Obligations). However, the prerequisite for this is that the employee behaves in good faith, which is not the case if he or she is (partly) responsible for the grievance.
10. What confidentiality obligations apply during an investigation?
10. What confidentiality obligations apply during an investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Confidentiality protects the interests of the persons involved in the investigation as well as the integrity of the investigation. Before providing information as part of the investigation, employers should direct the complainant, respondent or witnesses to sign confidentiality agreements. This agreement should direct the person to refrain from discussing the investigation or matters that are the subject of the investigation with any person other than the investigator.
It is also best practice for participants in the investigation to be directed not to victimise (threaten or subject to any detriment) any persons who are witnesses to or are otherwise involved in the investigation.
After an investigation, employers should write to the complainant, respondent and any witnesses reminding them of their ongoing confidentiality obligations.
Finland
Finland
- at Roschier
- at Roschier
Concerning a workplace investigation, there is no specific legislation in force at the moment regarding confidentiality obligations. All normal legal confidentiality obligations (eg, obligations outlined in the Trade Secrets Act (595/2018)), and if using an external investigator, the confidentiality obligations outlined in the agreement between the employer and the external investigator, apply. Attorneys-at-law always have strict confidentiality obligations as per the Advocates Act (496/1958).
Nigeria
Nigeria
- at Bloomfield LP
Workplace investigations should be kept strictly confidential to protect the parties involved in the investigation from victimisation. Some of the confidential obligations that apply during investigations are the identities of the parties involved in the process (whether as a complainant, respondent or witnesses), the confidentiality of reports, recordings and other documents generated or discovered during the investigation, as well as attorney-client privilege between the employee and his or her attorney, provided that such privilege is within the bounds of the law.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
Companies and employees are not bound by any statutory confidentiality obligation in the context of workplace investigations. However, if a company’s enquiry has the potential to examine employees’ private affairs, then the company must ensure the confidentiality of the investigation.
This confidentiality obligation would not arise from the investigation itself, but from the company’s obligation to safeguard its employees’ rights.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Besides the employee's duty of performance (article 319, Swiss Code of Obligations), the employment relationship is defined by the employer's duty of care (article 328, Swiss Code of Obligations) and the employee's duty of loyalty (article 321a, Swiss Code of Obligations). Ancillary duties can be derived from the two duties, which are of importance for the confidentiality of an internal investigation.[1]
In principle, the employer must respect and protect the personality (including confidentiality and privacy) and integrity of the employee (article 328 paragraph 1, Swiss Code of Obligations) and take appropriate measures to protect the employee. Because of the danger of pre-judgment or damage to reputation as well as other adverse consequences, the employer must conduct an internal investigation discreetly and objectively. The limits of the duty of care are found in the legitimate self-interest of the employer.[2]
In return for the employer's duty of care, employees must comply with their duty of loyalty and safeguard the employer's legitimate interests. In connection with an internal investigation, employees must therefore keep the conduct of an investigation confidential. Additionally, employees must keep confidential and not disclose to any third party any facts that they have acquired in the course of the employment relationship, and which are neither obvious nor publicly accessible.[3]
[1] Wolfgang Portmann/Roger Rudolph, BSK OR, Art. 328 N 1 et seq.
[2]Claudia Fritsche, Interne Untersuchungen in der Schweiz, Ein Handbuch für Unternehmen mit besonderem Fokus auf Finanzinstitute, p. 202.
[3] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 133.
11. What information must the employee under investigation be given about the allegations against them?
11. What information must the employee under investigation be given about the allegations against them?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
To ensure procedural fairness, the allegations must be put to the respondent in writing in advance of the investigation interview. The allegations must be specific, but the respondent does not need to be provided with a copy of the original complaint. The respondent should also be informed that if the allegations are substantiated they may result in disciplinary action up to and including the termination of the employee’s employment.
Finland
Finland
- at Roschier
- at Roschier
The process must be transparent and impartial, and therefore all the information that may influence the conclusions made during the investigation should be shared with the employee.
Nigeria
Nigeria
- at Bloomfield LP
An employee must be given the full details of the allegations against him or her to enable the employee to make adequate representations against the complaints made against him or her.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
It is not necessary to inform an investigated employee about an enquiry or of the allegations made against him or her. The obligation to disclose would only arise when:
- interviewing the employee would be the least intrusive means to investigate the facts; or
- if disciplinary measures are implemented as a result of the investigation. Since employees are entitled to challenge all disciplinary measures against them, they could request a court of law to disclose all the findings of the investigation, to assess if these findings could be useful to challenge the disciplinary measure.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
As a result of the employer's duty of care (article 328, Swiss Code of Obligations), employees under investigation have certain procedural rights. These include, in principle, the right of the accused to be heard. In this context, the accused has the right to be informed at the beginning of the questioning about the subject of the investigation and at least the main allegations and they must be allowed to share their view and provide exculpatory evidence.[1] The employer, on the other hand, is not obliged to provide the employee with existing evidence, documents, etc, before the start of the questioning.[2]
Covert investigations in which employees are involved in informal or even private conversations to induce them to provide statements are not compatible with the data-processing principles of good faith and the requirement of recognisability, according to article 4 of the Swiss Federal Act on Data Protection.[3]
Also, rights to information arise from the Swiss Federal Act on Data Protection. In principle, the right to information (article 8, Swiss Federal Act on Data Protection) is linked to a corresponding request for information by the concerned person and the existence of data collection within the meaning of article 3 (lit. g), Swiss Federal Act on Data Protection. Insofar as the documents from the internal investigation recognisably relate to a specific person, there is in principle a right to information concerning these documents. Subject to certain conditions, the right to information may be denied, restricted or postponed by law (article 9 paragraph 1, Swiss Federal Act on Data Protection). For example, such documents and reports may also affect the confidentiality and protection interests of third parties, such as other employees. Based on the employer's duty of care (article 328, Swiss Code of Obligations), the employer is required to protect them by taking appropriate measures (eg, by making appropriate redactions before handing out copies of the respective documents (article 9 paragraph 1 (lit. b), Swiss Federal Act on Data Protection)).[4] Furthermore, the employer may refuse, restrict or defer the provision of information where the company’s interests override the employee’s, and not disclose personal data to third parties (article 9 paragraph 4, Swiss Federal Act on Data Protection). The right to information is also not subject to the statute of limitations, and individuals may waive their right to information in advance (article 8 paragraph 6, Swiss Federal Act on Data Protection). If there are corresponding requests, the employer must generally grant access, or provide a substantiated decision on the restriction of the right of access, within 30 days (article 8 paragraph 5, Swiss Federal Act on Data Protection and article 1 paragraph 4, Ordinance to the Federal Act on Data Protection).
[1] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.
[2] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.
[3] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.
[4] Claudia Götz Staehelin, Unternehmensinterne Untersuchungen, 2019, p. 37.
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Employers will generally take steps to treat complaints sensitively and confidentially. However, because of the obligations employers have, confidentiality cannot be guaranteed as part of the investigation and the complainant, respondent and witnesses should be made aware of this.
Understandably, the complainant or witnesses may wish to remain anonymous. However, because the details of the allegations need to be put to the respondent so that they can provide an informed response or explanation, the source of the information will often need to be disclosed.
Employers can take steps to “ringfence” the investigation by asking employees to sign a confidentiality agreement. This will protect the interests of the participants of the investigation and uphold the integrity of the investigation.
Finland
Finland
- at Roschier
- at Roschier
See question 11, there is no protection of anonymity as the process must be transparent to the parties involved.
Nigeria
Nigeria
- at Bloomfield LP
Typically, the identities of the complainant, witnesses and sources of information for the investigation are kept confidential.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
As in question 10, the identity of the complainant or other employees involved in the investigation may be kept confidential and companies do not have to share their identity with investigated employees. Anonymous complaints are expressly allowed under Spanish law (see question 9).
Companies may have to produce this information and share it with the investigated employees if it is necessary to allow them to defend themselves from disciplinary measures taken against them. Similarly, in the context of litigation, an employee or plaintiff could request a Labour Court to order the company to disclose the details of the investigation.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
As mentioned under Question 10, the employer’s duty of care (article 328, Swiss Code of Obligations) also entails the employer’s duty to respect and protect the personality (including confidentiality and privacy) and integrity of employees (article 328 paragraph 1, Swiss Code of Obligations) and to take appropriate measures to protect them.
However, in combination with the right to be heard and the right to be informed regarding an investigation, the accused also has the right that incriminating evidence is presented to them throughout the investigation and that they can comment on it. For instance, this right includes disclosure of the persons accusing them and their concrete statements. Anonymisation or redaction of such statements is permissible if the interests of the persons incriminating the accused or the interests of the employer override the accused’ interests to be presented with the relevant documents or statements (see question 11; see also article 9 paragraphs 1 and 4, Swiss Federal Act on Data Protection). However, a careful assessment of interests is required, and these must be limited to what is necessary. In principle, a person accusing another person must take responsibility for their information and accept criticism from the person implicated by the information provided.[1]
[1] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Non-disclosure agreements, also known as confidentiality agreements, can be used to maintain the confidentiality of the investigation. In this agreement, the employee will be directed to maintain confidentiality concerning the investigation and matters that are the subject of the investigation, and not speak to anyone outside the investigation team about the investigation without authorisation.
Confidentiality agreements are legal documents. Employees should be informed that a breach of the confidentiality agreement could result in disciplinary action being taken against them, up to and including termination of their employment.
Finland
Finland
- at Roschier
- at Roschier
Yes, however, the need for an NDA is assessed always on a case-by-case basis.
Nigeria
Nigeria
- at Bloomfield LP
NDAs are usually part of an employee’s contract and, as such, create a contractual obligation between the parties privy to it. However, where the subject matter of an investigation borders on matters of a criminal nature, it might be impossible for parties to the NDA to continually uphold the obligation under the NDA because the parties have an obligation to the state to disclose facts of a criminal nature.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
Yes. NDAs are the preferred instrument to ensure that employees conducting the investigation, as well as those who participate as witnesses or collaborators, will keep the enquiry and its existence confidential.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In addition to the above-mentioned statutory confidentiality obligations, separate non-disclosure agreements can be signed. In an internal investigation, the employee should be expressly instructed to maintain confidentiality.
14. When does privilege attach to investigation materials?
14. When does privilege attach to investigation materials?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Investigation materials are not privileged and an employer may be required to disclose them in subsequent legal proceedings. If an employer is concerned about privilege attaching to an investigation, they should engage a legal practitioner to facilitate the investigation.
Employers who are concerned about privilege attaching to investigation materials should also consider the method of a lawyer’s engagement. The lawyer should be expressly engaged to investigate, report and to assist the employer by providing legal advice. Additional benefits can be achieved if the legal practitioner engages an external investigator to investigate the complaint and prepare the investigation report. Privilege will attach to the investigation materials because they are prepared for the lawyer to allow the lawyer to provide legal advice to the employer.
It is important that employers do not expressly or inadvertently waive privilege. For example, by disclosing the investigation report or substantial contents of the investigation report. It is a balance between providing information to the respondent and complainant about the outcome of the investigation and disclosing too much information.
Finland
Finland
- at Roschier
- at Roschier
The privilege of investigation materials concerns a rather limited amount of cases. In practice, materials may be considered privileged in connection with the litigation process under the Procedural Code (4/1734). For example, communications between a client and an attorney may attract protection against forcible public disclosure.
Nigeria
Nigeria
- at Bloomfield LP
Privilege attaches to investigation materials when a legal practitioner facilitates the internal investigation. Documents prepared during a workplace investigation will not automatically attract legal professional privilege, unless the investigation is facilitated by a legal practitioner.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
As explained above, investigation materials are not protected by privilege per se. To protect the confidentially of these materials, it is advisable to enter into NDAs with the employees involved in the investigation.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
As outlined above, all employees generally have the right to know whether and what personal data is being or has been processed about them (article 8 paragraph 1, Swiss Federal Act on Data Protection; article 328b, Swiss Code of Obligations).
The employer may refuse, restrict or postpone the disclosure or inspection of internal investigation documents if a legal statute so provides, if such action is necessary because of overriding third-party interests (article 9 paragraph 1, Swiss Federal Act on Data Protection) or if the request for information is manifestly unfounded or malicious. Furthermore, a restriction is possible if overriding the self-interests of the responsible company requires such a measure and it also does not disclose the personal data to third parties. The employer or responsible party must justify its decision (article 9 paragraph 5, Swiss Federal Act on Data Protection).[1]
The scope of the disclosure of information must, therefore, be determined by carefully weighing the interests of all parties involved in the internal investigation.
[1] Claudia M. Fritsche, Interne Untersuchungen in der Schweiz, Ein Handbuch für Unternehmen mit besonderem Fokus auf Finanzinstitute, p. 284 et seq.
15. Does the employee under investigation have a right to be accompanied or have legal representation during the investigation?
15. Does the employee under investigation have a right to be accompanied or have legal representation during the investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
The respondent should be given the opportunity to have a support person present during the investigation meeting and any subsequent conversations that concern the termination of their employment. Failure to allow the respondent to have a support person may result in any subsequent termination of employment being found to be an unfair dismissal. This is because under the Fair Work Act 2009 (Cth), when the FWC is considering whether a dismissal is an unfair dismissal, they must consider any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.
Employers should request that the respondent inform them 48 hours before any meeting of the identity of their support person. This will allow the employer to confirm the support person’s suitability. A support person can be a legal representative or trade union representative, but the role of a support person is limited to assisting the employee and they are not there to act as an advocate or representative.
Finland
Finland
- at Roschier
- at Roschier
The employee under investigation has a right to have a support person present (eg, a lawyer or an employee representative) during the hearings and a right to assistance in preparing written statements.
Nigeria
Nigeria
- at Bloomfield LP
The Constitution guarantees the right of every person to legal representation during investigations and interrogations by law enforcement agencies. However, our labour legislation is silent on whether an employee has a right to be accompanied or have legal representation during an investigation. Whether an employee has a right to legal representation will depend on the policy of the employer as well as the nature of the interrogation.
In practice, an employee is usually not accompanied or represented legally during an investigation. However, unless it is stipulated in the employee’s policy, nothing prohibits the employee from being accompanied or represented legally during an investigation.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
A workplace investigation under Spanish law is a fact-finding exercise and not a disciplinary procedure. For this reason, employees are not entitled to representation during an investigation (it is not even necessary to inform them about the enquiry).
If the investigated employees are made aware of the investigation (eg, because they will be interviewed or questioned), then it is good practice to allow them to be accompanied by external counsel or an employee representative. This would reduce the risk that employees would claim that they were under duress during the interview, or that they challenge the validity of the evidence obtained by the company.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In the case of an employee involved in an internal investigation, a distinction must be made as to whether the employee is acting purely as an informant or whether there are conflicting interests between the company and the employee involved. If the employee is acting purely as an informant, the employee has, in principle, no right to be accompanied by their own legal representative.[1]
However, if there are conflicting interests between the company and the employee involved, when the employee is accused of any misconduct, the employee must be able to be accompanied by their own legal representative. For example, if the employee's conduct might potentially constitute a criminal offence, the involvement of a legal representative must be permitted.[2] Failure to allow an accused person to be accompanied by a legal representative during an internal investigation, even though the facts in question are relevant to criminal law, raises the question of the admissibility of statements made in a subsequent criminal proceeding. The principles of the Swiss Criminal Procedure Code cannot be undermined by alternatively collecting evidence in civil proceedings and thus circumventing the stricter rules applicable in criminal proceedings.[3]
In general, it is advisable to allow the involvement of a legal representative to increase the willingness of the employee involved to cooperate.
[1] Claudia Götz Staehelin, Unternehmensinterne Untersuchungen, 2019, p. 37.
[2] Simona Wantz/Sara Licci, Arbeitsvertragliche Rechte und Pflichten bei internen Untersuchungen, in: Jusletter 18 February 2019, N 59.
[3] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 392; Niklaus Ruckstuhl, BSK-StPO, Art. 158 StPO N 36.
16. If there is a works council or trade union, does it have any right to be informed or involved in 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?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
A trade union does not have any right to be informed of, or involved in, an investigation by an employer. However, an employee may request that their support person is a trade union member or trade union representative. This is appropriate and should be permitted.
Employers should review the terms of an employment contract, policy or industrial instrument as this may contain terms regarding trade union involvement. In particular, heavily-unionised workplaces may contain enterprise agreements which contain relevant clauses.
Finland
Finland
- at Roschier
- at Roschier
A works council or a trade union does not have a role in the investigation.
Nigeria
Nigeria
- at Bloomfield LP
The law is silent on whether a member of a trade union has the right to be informed or involved in the investigation. Typically, this is dependent on the employee’s contract, handbook or other policies of the employer.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
As explained in question 15, employees are not entitled to representation during an investigation. However, if a disciplinary procedure starts as a result of the investigation, employee representatives may be entitled to be informed of the disciplinary procedure and its outcome.
The degree and timing of when employee representatives must be involved will depend on several factors such as:
- the employee’s affiliation to a union;
- if the employee is an employee representative;
- the seriousness of the potential sanction to be imposed; and
- the information rights that the applicable collective bargaining agreement acknowledges regarding employee representatives.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In general, works councils and trade unions are not very common in Switzerland and there are no statutory rules that would provide a works council or trade union a right to be informed or involved in an ongoing internal investigation. However, respective obligations might be foreseen in an applicable collective bargaining agreement, internal regulations or similar.
17. What other support can employees involved in the investigation be given?
17. What other support can employees involved in the investigation be given?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Employers should be conscious that the investigation may have an impact on the complainant, respondent and witnesses. Employers will need to consider how to support their employees. The level of support provided will often depend on the size of the organisation and programmes already in place.
Many employers have an Employee Assistance Programme and employees should be reminded about this programme if further support or assistance is required. An employer’s HR team may also be able to assist if an employee has concerns about the progress of an investigation.
Finland
Finland
- at Roschier
- at Roschier
They can request assistance, for example, from an occupational health and safety representative, a shop steward or the occupational healthcare provider.
Nigeria
Nigeria
- at Bloomfield LP
An employee being investigated has a right to be heard before a decision being made by the employer. Further, the body responsible for investigating the employee must be independent, so as not to be considered biased.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
For the reasons outlined in question 15, companies sometimes choose to voluntarily provide support to employees involved in the investigation (to ensure that evidence was lawfully obtained during the interview and is valid).
For investigated employees, one available support mechanism is for the company to cover the legal fees of an external counsel during the investigation or to offer to involve employee representatives. Reassurance may be provided to witnesses by guaranteeing, in writing, that their involvement in the investigation will be kept confidential and will not result in a detriment.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The employer does not generally need to provide specific support for employees that are subject to an internal investigation. The employer may, however, allow concerned employees to be accompanied by a trusted third party such as family members or friends.[1] These third parties will need to sign separate non-disclosure agreements before being involved in the internal investigation.
In addition, a company may appoint a so-called lawyer of confidence who has been approved by the employer and is thus subject to professional secrecy. This lawyer will not be involved in the internal investigation but may look after the concerned employees and give them confidential advice as well as inform them about their rights and obligations arising from the employment relationship.[2]
19. What if the employee under investigation raises a grievance during the investigation?
19. What if the employee under investigation raises a grievance during the investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
If a respondent raises a grievance during the investigation this should be dealt with under any employment contract, grievance policy or industrial instrument. This may involve investigating and responding accordingly. The content of the grievance should be carefully considered, but in many circumstances it is appropriate for the initial investigation to continue. Multiple investigations can be run simultaneously.
Finland
Finland
- at Roschier
- at Roschier
If the nature of the grievance relates to the employer's obligations to handle such matters in general, the grievance will be investigated either separately or as a part of the ongoing investigation.
Nigeria
Nigeria
- at Bloomfield LP
It is not unusual for an employee under investigation to raise a grievance during the investigation. This grievance may be on the same subject matter as the complaint being investigated or may disclose new facts outside the scope of the matter being investigated.
Where the issue discloses new facts, the employer is required to investigate those facts without suspending the investigation. However, where the grievance relates to the same subject matter as the complaint being investigated, the employer may either suspend the investigation to allow the investigation to recognise the grievance and the complaint against the employer or proceed with the investigation while noting that the matter disclosed is being or will be investigated.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
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.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In the context of private internal investigations, grievances initially raised by the employee do not usually have an impact on the investigation.
However, if the employer terminates the employment contract due to a justified legal complaint raised by an employee, a court might consider the termination to be abusive and award the employee compensation in an amount to be determined by the court but not exceeding six months’ pay for the employee (article 336 paragraph 1 (lit. b) and article 337c paragraph 3, Swiss Code of Obligations). Furthermore, a termination by the employer may be challenged if it takes place without good cause following a complaint of discrimination by the employee to a superior or the initiation of proceedings before a conciliation board or a court by the employee (article 10, Federal Act on Gender Equality).
20. What if the employee under investigation goes off sick during the investigation?
20. What if the employee under investigation goes off sick during the investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
It is not uncommon for respondents to an investigation to take personal or carer’s leave (sick leave) claiming that they are suffering from stress or anxiety. If this occurs, employers need to act appropriately, but this does not necessarily involve stopping the investigation process.
Employers should:
- assess the medical evidence to ascertain the respondent’s condition and determine how long they are likely to be unwell;
- avoid exacerbating the condition;
- determine whether the employee is unfit to attend the investigation meeting;
- take into consideration the evidence of other witnesses;
- consider delaying the investigation for a short period; and
- consider conducting the interviews in other ways, for example, in writing.
While all efforts should be made to accommodate an employee who has taken personal or carer’s leave during an investigation, if the respondent does not participate in the investigation, the investigation report may be prepared based on the available evidence.
Finland
Finland
- at Roschier
- at Roschier
As a general rule, sick leave does not prevent an investigation from progressing. Depending on the nature of the sickness, the employee can attend hearings and take part in the procedure. If the sickness prevents the employee from participating, the employer can put the process on hold temporarily.
Nigeria
Nigeria
- at Bloomfield LP
The investigation would be suspended until the employee returns from sick leave. The investigation will immediately restart upon the return of the employee.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
Like in the case of grievances (see question 19), the deciding factor will be assessing whether sick leave is related to the investigation or not.
If there is no link between the investigation and the sick leave, then the leave is not relevant from the point of view of the investigation. However, if the sick leave was a result of the investigation (for instance, an employee taking sick leave due to anxiety related to the investigation), then the convenience of pursuing the investigation or of temporarily suspending it should be evaluated to avoid any liability for the company.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The time spent on the internal investigation by the employee should be counted as working time[1]. The general statutory and internal company principles on sick leave apply. Sick leave for which the respective employee is not responsible must generally be compensated (article 324a paragraph 1 and article 324b, Swiss Code of Obligations). During certain periods of sick leave (blocking period), the employer may not ordinarily terminate the employment contract; however, immediate termination for cause remains possible.
The duration of the blocking period depends on the employee's seniority, amounting to 30 days in the employee's first year of service, 90 days in the employee's second to ninth year of service and 180 days thereafter (article 336c paragraph 1 (lit. c), Swiss Code of Obligations).
[1] Ullin Streiff/Adrian von Kaenel/Roger Rudolph, Arbeitsvertrag, Praxiskommentar zu Art. 319–362 OR, 7. A. 2012, Art. 328b N 8 OR.
21. How do you handle a parallel criminal and/or regulatory investigation?
21. How do you handle a parallel criminal and/or regulatory investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
There are circumstances of misconduct in the workplace that can also constitute criminal conduct and be subject to a criminal or regulatory investigation. This can include physical or sexual assault, theft, fraud, illegal drug use or stalking.
An employer can proceed with an investigation to determine whether the respondent engaged in misconduct on the balance of probabilities. The employer can terminate an employee’s employment before the outcome of any criminal investigation. However, the employer must keep in mind that procedural fairness must be afforded to the employee, particularly in circumstances where an employee is awaiting the outcome of a court proceeding.
Alternatively, an employer may decide to suspend the employee pending the outcome of the criminal investigation. If a criminal act has been committed, then the employer may decide to terminate the employee’s employment.
Co-operation with the police and regulatory authorities is sensible and evidence can be compelled by the police or regulators by, for example, a subpoena, search warrant or an order for production.
Finland
Finland
- at Roschier
- at Roschier
Regardless of a possible criminal investigation, the employer must run its internal workplace investigation without unnecessary delay. A workplace investigation and a criminal investigation are two separate processes and can be ongoing simultaneously, so the criminal process does not require the workplace investigation to be stayed. Thus, parallel investigations are to be considered as two separate matters. The police may only obtain evidence or material from the company or employer if strict requirements for equipment searches are met after a request for investigation has been submitted to the police.
Nigeria
Nigeria
- at Bloomfield LP
Where an employee has committed misconduct at work that is also the subject of a police investigation, the employer can conduct its own investigation and does not have to await the outcome of the criminal proceedings. The Supreme Court, in the case of Dongtoe v CSC Plateau State (2001), held that it is preposterous to suggest that the administrative body should stay its disciplinary jurisdiction over a person who had admitted criminal offences.
Further, the police or regulator may compel the employer to share evidence with it in the interests of justice.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
Criminal or regulatory investigations may (and usually do) run in parallel to workplace investigations.
There is no need to stay the internal investigation and, in practice, this normally is not possible or advisable considering the substantially longer timeframe of criminal or regulatory investigations (which can extend for several months or years).
The police or a regulator may request a company to share any relevant information that it might have on the facts being reviewed by them. However, the company’s obligation to provide that information would have to be reviewed on a case-by-case basis, depending on the information being requested (eg, whether it is sensitive to the business, such as trade secrets or internal correspondence) and the grounds to do so (if the police or regulator have a search warrant issued by a court or not).
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The actions of the employer may carry through to a subsequent state proceeding. First and foremost, any prohibitions on the use of evidence must be considered. Whereas in civil proceedings the interest in establishing the truth must merely prevail for exploitation (article 152 paragraph 2, Swiss Civil Procedure Code), in criminal proceedings, depending on the nature of the unlawful act, there is a risk that the evidence may not be used (see question 27 and article 140 et seq, Swiss Civil Procedure Code).
22. What must the employee under investigation be told about the outcome of an investigation?
22. What must the employee under investigation be told about the outcome of an investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Managing the outcome of the investigation is an important part of the process. The respondent must be informed of the outcome of the investigation as soon as possible after the investigation is completed and the decision-maker has decided how to proceed.
The investigator must decide whether the claims have been substantiated on the balance of probabilities and the decision-maker must decide what disciplinary action, if any, will be taken. Any disciplinary action should be proportionate to the seriousness of the misconduct. Disciplinary action could include a warning, counselling, monitoring of behaviour or termination of employment.
Ideally, the outcome of the investigation should be communicated to the respondent and complainant in writing, setting out the allegations that have been substantiated, unsubstantiated or whether there is insufficient evidence to make a finding.
Finland
Finland
- at Roschier
- at Roschier
The employer's conclusions from the investigation.
Nigeria
Nigeria
- at Bloomfield LP
The employee under investigation must be informed of the outcome of the investigation as soon as a decision is reached.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
Employees under investigation are not entitled to be informed about the investigation or its outcome. As set out above (see question 11), an employee would have a right to be informed about the outcome of an investigation if the employer takes any disciplinary actions as a consequence of the enquiry.
The reason to disclose the details of the investigation is to allow the employee to adequately defend him or herself from the alleged breaches.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Workplace investigations often result in an investigation report that is intended to serve as the basis for any measures to be taken by the company's decisionmakers.
The employee's right to information based on article 8, Swiss Federal Act on Data Protection also covers the investigation report, provided that the report and the data contained therein relate to the employee.[1] In principle, the employee concerned is entitled to receive a written copy of the entire investigation report free of charge (article 8 paragraph 5, Swiss Federal Act on Data Protection and article 1 et seq, Ordinance to the Federal Act on Data Protection). Redactions may be made where the interests of the company or third parties so require, but they are the exception and must be kept to a minimum.[2]
24. What next steps are available to the employer?
24. What next steps are available to the employer?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Employers must take steps to deal with the findings of the investigation and implement any recommendations promptly. This may involve commencing disciplinary action.
The complainant and respondent need to be informed of the outcome of the investigation. All witnesses who participated in the investigation should also be thanked for their contribution and advised that the investigation has been completed. All participants in an investigation should be reminded of their ongoing obligations concerning confidentiality and victimisation.
If an employer decides that it may be appropriate to terminate a respondent’s employment, the employee must be provided with the opportunity to respond and to “show cause” as to why their employment should not be terminated.
The investigation report along with any other materials produced during the investigation should be kept in a separate confidential file.
Employers should also consider whether action should be taken at an organisational level to prevent future misconduct. In particular, employers are required to take a proactive approach to addressing systemic workplace cultural issues in relation to sex discrimination, sexual harassment and victimisation.
Finland
Finland
- at Roschier
- at Roschier
The employer decides whether misconduct has taken place or not. Depending on the case, the employer may recommend a workplace conciliation in which the parties try to find a solution that can be accepted by both sides. The employer may choose to give an oral reprimand or a written warning. If the legal conditions are met, the employer may also terminate the employment agreement.
Nigeria
Nigeria
- at Bloomfield LP
Upon the completion and receipt of the findings of the investigation, the employer may affirm the employee’s innocence or take disciplinary action against them.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
After the conclusion of the enquiry, a company may choose to:
- close the investigation without taking any additional action; or
- adopt disciplinary measures against the employee.
These could range from a verbal or written warning to the suspension of work and pay for a set period. Disciplinary dismissals are also possible, but they are reserved for very serious offences.
Note that any disciplinary measure will have to follow the procedures that might be established in the applicable collective bargaining agreement, such as informing employee representatives or following a grievance procedure before adopting the measure.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
If the investigation uncovers misconduct, the question arises as to what steps should be taken. Of course, the severity of the misconduct and the damage caused play a significant role. Furthermore, it must be noted that the cooperation of the employee concerned may be of decisive importance for the outcome of the investigation. The possibilities are numerous, ranging, for example, from preventive measures to criminal complaints.[1]
If individual disciplinary actions are necessary, these may range from warnings to ordinary or immediate termination of employment.
[1] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 180 et seq.
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?
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?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
The outcome of the investigation must be disclosed to the complainant and respondent. If there is a concurrent police or regulatory investigation, they may request a copy of the investigation report. Employers should generally cooperate with regulatory authorities, but should be careful about disclosing the investigation report as this may be privileged and privacy obligations must be considered. Employers should consider only disclosing the investigation findings and interview records if compelled to do so by regulators or police.
Interview reports, the investigation report and communications about the investigation should be kept in a separate file. The file should be marked confidential and access to the file should be restricted.
If proceedings are commenced, the investigation materials may be subject to disclosure unless legal professional privilege can be asserted, see above.
Finland
Finland
- at Roschier
- at Roschier
In general, investigation materials, including findings, that includes personal data should only be processed by the personnel of the organisation who are responsible for internal investigations. However, it may in some situations be required by applicable legislation that findings are disclosed to competent authorities for the performance of their duties, such as conducting investigations in connection with malpractice and violations of the law.
Nigeria
Nigeria
- at Bloomfield LP
Investigation findings may be disclosed to the employee and every other person having an interest in the investigation. Where it is discovered that a crime has been committed, the investigation findings may be disclosed to the regulators or police.
Typically, interview records are kept private and will not be disclosed unless it is interest of justice.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
Companies may only disclose the outcome of an investigation to employees or officers of the company who are empowered to adopt the measures that are necessary because of the investigation’s results (see question 4).
This disclosure obligation does not extend to authorities: while there is a general obligation to report criminal or administrative offences to the competent authorities, this obligation must be read in line with the companies’ right not to self-report themselves. What a company must not do is cover up, aid or otherwise become an accessory to the offence.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The employer is generally not required to disclose the final report, or the data obtained in connection with the investigation. In particular, the employer is not obliged to file a criminal complaint with the police or the public prosecutor's office.
Exceptions may arise, for example, from data protection law (see question 22) or a duty to release records may arise in a subsequent state proceeding.
Data voluntarily submitted in a proceeding in connection with the internal investigation shall be considered private opinion or party assertion.[1] If the company refuses to hand over the documents upon request, coercive measures may be used under certain circumstances.[2]
[1] Oliver Thormann, Sicht der Strafverfolger – Chancen und Risiken, in: Flavio Romerio/Claudio Bazzani (Hrsg.), Interne und regulatorische Untersuchungen, Zürich/Basel/Genf 2016, p. 123.
[2] Oliver Thormann, Sicht der Strafverfolger – Chancen und Risiken, in: Flavio Romerio/Claudio Bazzani (Hrsg.), Interne und regulatorische Untersuchungen, Zürich/Basel/Genf 2016, p. 102 et seq.
26. How long should the outcome of the investigation remain on the employee’s record?
26. How long should the outcome of the investigation remain on the employee’s record?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
There are legal requirements related to the time you must keep certain employee records in Australia, such as pay slips and time sheets. However, there are no laws concerning disciplinary records.
Employers can rely on previous misconduct to justify an employee’s termination of employment where it can be shown it is part of a course of conduct. Accordingly, if complaints have been substantiated, and disciplinary action has been taken, these records should be maintained. However, if a significant period has elapsed since the misconduct, an employer should carefully consider whether it is appropriate to rely on this past behaviour to justify future disciplinary action for similar conduct.
Finland
Finland
- at Roschier
- at Roschier
Please see question 7. The outcome of the investigation involving personal data may be retained only for as long as is necessary considering the purposes of the processing. In general, the retention of investigation-related data may be necessary while the investigation is still ongoing and even then the requirements of data minimization and accuracy should be considered. The data concerning the outcome of an investigation should be registered to the employee's record merely to the extent necessary in light of the employment relationship or potential disciplinary measures. In this respect, the applicable retention time depends on labour law-related rights and limitations, considering eg, the applicable periods for filing a suit.
Nigeria
Nigeria
- at Bloomfield LP
The law does not provide for the time the outcome of the investigation may remain on the employee’s record. However, this will depend on the employer’s record-retention policies, which must comply with applicable data protection laws.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
The outcome of the investigation will contain personal data of the affected employee. For this reason, this information should only be kept for as long as a legal obligation or liability in connection with the information could arise for the company. Since the general statute of limitations for employment liability is one year, this is a good guideline.
In addition to the above, two specific rules apply:
- once the information becomes irrelevant for the purpose for which it was obtained and processed, the information should no longer be stored on the employee’s record or elsewhere; and
- the employees’ information (including those of the reporter and the affected employees) should only be stored in whistleblower systems during the time that is necessary to decide on whether the facts need to be investigated or not and, in any case, for a maximum period of three months.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
From an employment law point of view, there is no statute of limitations on the employee's violations. Based on the specific circumstances (eg, damage incurred, type of violation, basis of trust or the position of the employee), a decision must be made as to the extent to which the outcome should remain on the record.
From a data protection point of view, only data that is in the interest of the employee (eg, to issue a reference letter) may be retained during the employment relationship. In principle, stored data must be deleted after the termination of the employment relationship. Longer retention may be justified if rights are still to be safeguarded or obligations are to be fulfilled in the future (eg, data needed regarding foreseeable legal proceedings, data required to issue a reference letter or data in relation to a non-competition clause).[1]
[1] Wolfgang Portmann/Isabelle Wildhaber, Schweizerisches Arbeitsrecht, 4. Edition, Zurich/St. Gallen 2020, N 473.
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?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
It is important for employers to conduct procedurally fair investigations that result in a fair outcome. Failure to do so may expose the employer to various claims by an employee. The most common type of claim following an investigation is an unfair dismissal claim. If a respondent’s employment is terminated because of an investigation, they may be eligible to bring an unfair dismissal claim in the FWC alleging their dismissal was harsh, unjust or unreasonable.
An employee may also bring a bullying, discrimination or general protections claim. These claims may be made even where the investigation does not result in the employee’s dismissal.
If an employer has departed from the procedures set out in their policies, or they have not followed the terms of an employee’s employment contract or another applicable industrial instrument then an employee may bring a claim for breach of contract.
Australia has also recently introduced the “Respect@Work” legislation which places a positive obligation on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. Accordingly, an employer who is not perceived to have taken a proactive and fair approach to these workplace issues faces significant legal exposure.
Failure to conduct an investigation properly (or a failure to conduct an investigation in circumstances where it is needed) can also cause significant reputational and financial risk.
Finland
Finland
- at Roschier
- at Roschier
There are no regulations regarding the actual investigation process. Therefore, the employer cannot be accused of procedural errors as such. However, once the matter has been adequately investigated, the employer must decide whether or not misconduct has taken place. If the employer considers that misconduct has taken place, the employer must take adequate measures for remedying the situation. Failure to adequately conduct the investigation could result in criminal sanctions being imposed on the employer as an organisation or the employer’s representative, or damages.
Nigeria
Nigeria
- at Bloomfield LP
- Violation of Fundamental Rights of the Employee
- Breach of Contract of Employment or wrongful termination
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
Errors during an investigation are normally linked to the breach of the employees’ privacy or their personal data rights (see question 1). Breaching these rights might expose employers to:
- Fines from the Labour Inspectorate and the Spanish Data Protection Authority.
- A court awarding damages to the employee.
- Any disciplinary measures adopted by the company as a result of the investigation could be considered null and void.
- The evidenced obtained during the investigation being disregarded by a court.
- In some very serious cases, criminal liability might arise for the individuals who conducted the investigation and breached the employees’ rights.
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.