Workplace Investigations

There is no specific legislation regarding a workplace investigation. In general, an employer has the right to investigate incidents at the workplace based on their authority over employees. However, the investigative powers of the employer are among others limited by the general right to privacy, which is also enshrined in Collective Bargaining Agreement No. 81 of 26 April 2002 to protect the privacy of employees concerning the control of electronic online data. If there are official complaints by employees due to sexual harassment, bullying or violence at work,  well-being legislation provides a specific procedure. Also, upcoming whistleblower rules include some specifications for an investigation, but at the time of publication these are not yet final (we refer to is in more detail below). The information below is only valid for workplace investigations in the private sector. The public sector has a set of specific rules and principles, which are outside the scope of this chapter.

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

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

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

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

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

There 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.

First, the employer should appoint an investigator or investigative team that will be responsible for conducting the investigation. Next, the employer or the investigators might think about communicating with the involved employees. It depends on the situation if this is a good idea or not. In general, it can be recommended that the employer is transparent towards the involved employees and openly communicates about the (start of the) investigation process. This is definitively the case if it is already clear that the involved employees are under scrutiny because of their actions. In this case, the actual investigation can begin with a hearing of the involved employees. However, if there is a risk that employees will hide or destroy evidence or will collude to prevent the employer from finding the truth, the investigation can also start without any communication. In this case, it would be better to start collecting evidence before hearing from the employees involved.

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).

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]

In principle, you cannot unilaterally suspend an employee during a workplace investigation, as there is a risk of constructive dismissal (ie, wrongful termination of the employment contract by the unilateral modification of one of its essential elements). Consequences could include the payment of an indemnity in lieu of notice based on seniority as foreseen by the Employment Contracts Act, plus possible damages (three to 17 weeks remuneration if an unreasonable dismissal, plus alternative or additional damages based on real prejudice suffered). The parties can nevertheless agree on a suspension of the employment contract. In this scenario, the remuneration will still have to be paid. Furthermore, a suspension could be a sanction that follows the outcome of the investigation, but even then it will only be possible for a limited time (and a suspension without pay is usually only allowed by the courts for a maximum of three days). However, if the complaint is about sexual harassment, bullying or violence at work, the prevention advisor (see question 4) can recommend that the employer take certain actions, which in grave circumstances could lead to employee suspension. The suspended employee should continue to receive his pay if this occurs.

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.

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.

In general, there are no legal minimum qualifications, the employer can delegate the investigation task to anyone. Of course, it is strongly recommended to appoint someone who is not involved in the case and who can lead the investigation objectively with the necessary authority to take investigative measures.

However, in the specific case of an official complaint due to sexual harassment, violence or bullying at work, the investigation will be conducted by the prevention advisor for psychosocial aspects. Next, if the investigation is based on an internal whistleblowing report, there will have to be an independent reporting manager responsible for receiving the report, giving feedback to the whistleblower and ensuring a decent follow-up to the report. Logically, the reporting manager will lead the investigation in this case, but he can be assisted by other persons or a team who are bound by a duty of confidentiality.

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).

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.

This is only possible if the employee claims that his or her rights (eg, the right to privacy) are violated by the investigation (but this will merely limit the investigation methods) or if he or she finds that the investigation constitutes an abuse of rights. In any case, it will be very hard for an employee to completely halt the investigation.

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.

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.

Employees cannot be forced by their employer to act as a witness. If they decide to nonetheless testify as a witness, they do not, in principle, have particular rights. If the employee puts himself in a difficult or even dangerous position to act as a witness, it is up to the employer to offer the necessary protection or take measures to prevent any harm (eg, by keeping the identity of the witness confidential or by planning the hearing at a place or time when the employees involved are not aware of it).  

However, this is not the case for whistleblowing reports, where a witness might be seen as a “facilitator” who can receive protection against any retaliation by the employer.

Also, workers who were direct witnesses to official allegations of sexual harassment, violence or bullying at work are protected against retaliation by the employer. This also applies to witnesses in court.

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.

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]

Here, the investigation “collides” with the right to privacy of the persons involved.

First, the rules and principles of the GDPR will apply if personal data is involved. Therefore, the employer will have to find a data-processing ground, which could be his or her legitimate interest or the fact that the investigation could lead to legal proceedings, etc. The data processing should also be limited to what is proportionate and the data subjects should be informed. Due to this obligation, it is arguable that the GDPR policy already provides the necessary information for the employees not to jeopardise the investigation. In any case, data subjects should not be able to use their right to access data to ascertain the preliminary findings of the investigation (which are confidential) or any confidential identities involved (eg, in the whistleblower procedure, the identity of the report should be protected at all times).

Also, the employer should follow the procedure of Collective Bargaining Agreement No. 81 on searching the e-mails or computer files and internet searches of employees. This CBA limits the purposes for searches and lays down a double-phase procedure that needs to be followed if private data is involved. Next to this, the employer should also take into account the case law of the European Court of Human Rights, which only allows e-mail and computer searches based on the following:

• whether the employee has been notified of the possibility that the employer might take measures to monitor correspondence and the implementation of such measures;
• the extent of the monitoring and the degree of intrusion into the employee’s privacy (including a distinction between the monitoring of the flow or the content of the communications);
• whether the employer has provided legitimate reasons to justify monitoring of the communications and accessing of their actual content; and
• whether it would have been possible to establish a monitoring system based on less intrusive measures, the consequences of the monitoring for the employee who is subject to it, and whether the employee had been provided with adequate safeguards.

Next, if the employer wants to use camera images, the rules of Collective Bargaining Agreement No. 68 should have been followed when installing cameras. If not, the images might have been collected illegally.

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.

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.

The employer is, in principle, not entitled to search the employee’s private possessions, except with the explicit consent of the employee. Digital files on the computer or laptop of an employee can be searched under the rules of CBA No. 81 (see question 7) and other privacy rules.  

Please see question 7.

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]

If the investigation is based on a whistleblower report that falls under the scope of the upcoming rules, the investigators are bound by a strict duty of confidentiality, especially regarding the identity of the report. The rules also provide some procedural deadlines for feeding back to the reporter. Within seven days of receiving the report through an internal reporting channel, the reporting manager needs to send a receipt to the whistleblower. From that moment, the reporting manager has three months to investigate the report and give feedback and an adequate follow-up to the report. Next, the rules offer strong protection against any retaliatory measures the reporter may experience. Regardless, these rules are mostly intended to offer the necessary protection for whistleblowers and to ensure that companies take necessary investigative steps following a report, but they do not include much information about the actual procedure of the investigation besides certain deadlines, nor do they deal with other employees involved (or under investigation).

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.

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.

A workplace investigation is often a sensitive matter that requires necessary confidentiality to find out the truth discreetly and objectively. Nevertheless, there is often pressure from employees, trade unions or even the media and general public to be transparent and communicate about the case. From a legal perspective, it is not recommended to communicate openly about an ongoing investigation, as this can jeopardise the investigation or the possibility of taking disciplinary measures.

Whistleblower investigations will be bound by a strict duty of confidentiality regarding anything that could reveal the identity of the reporter.

In complaints due to sexual harassment, violence or bullying at work, the prevention adviser is bound by professional secrecy. Consequently, he or she may not disclose to third parties any information about individuals that have come to his or her knowledge in the performance of his or her duties. However, he or she still has the freedom to inform the people concerned to carry out his or her tasks in the procedure.

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.

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]

In general, the employee should be informed that there is an ongoing investigation (unless this could jeopardise the investigation, in which case disclosure could be postponed until this is no longer the situation). Next, before imposing measures or sanctions, the employee should be allowed to be heard or to give his or her version of the facts. Of course, the employee can only do this if he or she is aware of the facts being investigated. It is not necessary to give the employee a full insight into the investigation, only the necessary facts that allow him or her to offer a defence are sufficient.

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.

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).

If the complainant made use of an internal whistleblowing procedure, confidentiality regarding the identity of a reporter is mandatory. Also, in other cases and for other involved persons (witnesses), it is recommended to keep their identity confidential to prevent the risk of intimidation or other negative consequences.

In complaints due to sexual harassment, violence or bullying at work, if the prevention adviser heard or took written statements from persons that were considered useful for the evaluation, these persons may remain anonymous.

The employee must, nevertheless, receive sufficient information to be able to offer a defence concerning the facts of which he or she is accused.

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.

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]

In principle this is possible. However, these NDAs do have their limits and cannot prevent involved persons from, for example, bringing a legal claim or filing a report if they are legally entitled to do so. Under whistleblower rules, a reporter can even publish his or her complaint under certain circumstances.

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.

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.

If the investigation is conducted by a prevention advisor, the investigation and the prevention advisor are bound and protected by a professional duty of confidentiality.

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.

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.

An employee can be assisted by a member of a trade union. They are also free to consult a lawyer.

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.

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.

At the request of the involved employee, an employee can be assisted by a member of the trade union delegation, for example, during his or her hearing.

The works council should be informed of an investigation if there is a considerable impact on the company; this will only be the case if the investigation concerns a very serious, important or widespread issue. This information should be communicated as soon as possible and before measures are taken as a result of the investigation. This is only a right to information, not consultation. Moreover, members of the works council may be asked to respect their duty of confidentiality. However, as the enforcement of this duty of confidentiality is difficult, the timing of the information should be chosen wisely so it does not jeopardise the investigation.

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.

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.

There are no other mandatory support measures. However, an employer is free to offer additional support, for example, by granting leave from work. If tensions at the workplace are high, it may be a good idea to ask the employee under investigation to take some leave. Some companies also provide certain legal, moral or even psychological support. If the complaint concerns sexual harassment, bullying or violence at work, the prevention adviser can also recommend that the employer take additional measures to support certain employees.

Furthermore, under the whistleblower rules, an external reporting authority can grant any support measure (eg, legal advice or financial, technical, psychological or media-related, social support).

For complaints due to sexual harassment, violence or bullying at work, and if the facts are serious, the prevention adviser should, during the examination of the request and before giving his or her opinion to the employer, propose protective measures to the employer. These measures are necessary to avoid serious damage to the complainant's health or a significant deterioration in the situation (for example, causing opposing parties to commit criminal offences). The final decision on taking these measures rests with the employer. This means that the employer does not necessarily have to take the measures proposed by the prevention adviser. They may take other measures that provide an equivalent level of protection for the employee.

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.

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]

If the investigation is not protected by confidentiality towards the employer (e.g. the prevention advisor cannot disclose confidential information to the employer), it could result in further measures taken by the employer or lead to a new investigation.

The issue with revealing unrelated matters to the investigation is that it may jeopardise the entire enquiry. If the unrelated matters are private or the disclosure is construed as a breach of employees’ fundamental rights, then the materials gathered during the investigation could be considered to be unlawfully obtained and would not be admitted as evidence in court.

Moreover, the employee could seek damages and a fine could be imposed on the company for breaching its employee’s rights.

Finally, if unrelated matters are revealed, it could be a clear sign that the company has failed to conduct a diligent investigation and use the least intrusive means available to it (see question 1). One of the reasons to minimise the number of employees conducting the investigation (see question 4) is to reduce damages if matters unrelated to the investigation are revealed.

There are no regulations in this regard in the Swiss employment law framework. However, in criminal proceedings, the rules regarding accidental findings apply (eg, article 243, Swiss Criminal Procedure Code for searches and examinations or article 278, Swiss Criminal Procedure Code for surveillance of post and telecommunications). In principle, accidental findings are usable, with the caveat of general prohibitions on the use of evidence.

This will depend on where the employee raises a grievance and the content of the grievance. If it is against the employer, the investigation can take this into account and continue from there. If the grievance is raised against the authorities, it will depend on the steps taken by the authorities.

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.

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).

If this occurs, there is a risk that any measure resulting from the investigation (eg, a dismissal) can be (wrongly) interpreted as discrimination based on the illness of the employee. However, if the employer can prove that the measure is not related to the illness but solely related to the investigation (which is also not related to the illness), there may be no discrimination. The sickness of the employee may prevent the continuation of the investigation because, for example, it becomes impossible to hear from the employee. In this instance, the investigation can be suspended, postponed or extendeded until the employee returns. If it is a long-term absence, this could lead to a disproportionate amount of time to complete the investigation. Therefore, the employer should take any necessary steps to invite the ill employee to a hearing anyway (eg, through digital means). If the employee unreasonably refuses (several) of these invitations, it could be argued that the employee is wilfully boycotting the investigation and therefore forfeits his or her opportunity to be heard.

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.

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).

In legal proceedings, a criminal procedure takes precedence over civil procedures. However, disciplinary internal proceedings (like a workplace investigation) and an investigation by the authorities may run parallel to each other. If the public investigation leads to a court procedure that results in the acquittal of the employee under investigation, it could lead to legal problems if the employer has already imposed sanctions based on the same employee. Therefore, the employer could make the internal investigation dependent on the public investigation, and could take preventive measures while awaiting the outcome.

The public authorities normally have the legal competence to request information that can help them in their investigation. Therefore, they could rightfully ask the employer to share evidence or findings from the internal investigation.

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).

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).

It is highly recommended to inform the employee under investigation of the outcome. If disciplinary measures are imposed upon him or her, the legal procedure must be followed and the sanction must be imposed or communicated the day after the employer or his delegate has established the wrongdoing of the employee.

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.

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]

It is recommended to limit the communication to the findings and details of the report that are necessary for the employee to fully understand the outcome. This is especially true if the investigation is bound by a duty of confidentiality (eg, under the whistleblowing rules), as the employee should not be allowed access to the full report.

Since workplace investigations are not regulated in Spain, there are no clear rules as to the amount of information on the investigation that would need to be shared with an employee if the company was compelled to disclose the enquiry (see questions 11 and 22). A good rule of thumb is that an employee should have access to all the information that is relevant to be in a position to oppose the alleged breaches.

Moreover, if the disciplinary measures taken were challenged before a Labour Court – employees in Spain tend to challenge these types of measures – the plaintiff could request the Labour Court to order the company to produce all of the investigation details, including the findings and the full investigation report.

Finally, companies will normally have an interest in producing a report that clearly states the moment in which the fact-finding exercise was concluded and the company had a full picture of the facts. This is because the statute of limitations to sanction employment breaches, which ranges from 10 to 60 days depending on the seriousness of the misconduct, starts to count when the company has a comprehensive view of the events (which would coincide with the date the investigation report was issued).

In principle, there is no obligation to disclose the final investigation report. Disclosure obligations may arise based on data protection law vis-à-vis the persons concerned (eg, the accused). Likewise, there is no obligation to disclose other documents, such as the records of interviews. The employee should be fully informed of the final investigation report, if necessary, with certain redactions (see question 22). The right of the employee concerned to information is comprehensive (ie, all investigation files must be disclosed to him).[1] Regarding publication to other bodies outside of criminal proceedings, the employer is bound by its duty of care (article 328, Swiss Code of Obligations) and must protect the employee as far as is possible and reasonable.[2]

If the investigation leads to the establishment of grave errors by the employee, this can lead to sanctions. The employer must follow the procedure laid down in the internal work rules of the company and can only impose sanctions that are included in the internal work rules. In general, these are: a verbal warning; a written warning; a suspension (remunerated or not); a fine (capped to one-fifth of daily remuneration); and dismissal. If there are very serious errors leading to an immediate inability to continue the employment relationship with the employee, the employer can dismiss the employee with urgent cause without any notice period or indemnity in lieu of notice (following the specific procedure for these types of dismissals). In less serious cases, the employer could still dismiss the employee with a notice period or indemnity in lieu of notice. In principle, the employer has a right to dismiss the employee, even if this sanction is not included in the internal work rules.

As said previously, disciplinary sanctions (included in the internal work rules) must be communicated to the sanctioned employee the day after the employer or his delegate has established fault. The sanction must be registered in a sanction register, with the name of the employee, the date, the reason and the nature of the sanction. If there is a fine, the amount of the fine should be mentioned. The proceeds of the fines must be used for the benefit of employees. Where a works council exists, the use of the proceeds of the fines must be determined after consultation with it.

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.

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.

If the investigated acts constitute a crime, the authorities or the police should be informed. In certain cases, not doing so could lead to the company being accused of concealing a crime or becoming jointly responsible for it. However, if the company is the only victim of the crime and it is minor, the company may choose not to inform the authorities. For example, there is an enormous difference between a bank employee stealing large amounts of money from clients and an employee who is stealing toilet paper from the company. As stated above, the interview records could be at risk of disclosure if the authorities or police seize them for their investigation.

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.

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]

According to the GDPR, personal data should only be stored for a proportionate amount of time. Usually, this means that it can be stored as long as it is relevant for the employment contract, and even afterwards, if there is a risk of legal proceedings (ie, regarding the dismissal of the employee).

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.

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]

In general, abusive investigations could lead to a legal claim regarding the abuse of rights. During an investigation, an employer should be guided by principles of due diligence and not take disproportionate action. If the investigation causes unnecessary damage, involved employees could file for compensation (eg, before the labour court). Next, the employer is also responsible for following the mandatory procedure for official complaints regarding sexual harassment, bullying and violence at work and investigations of whistleblower reports. In the first case, an employer who does not follow the procedure or obstructs the procedure can be liable for penal or administrative fines (maximum 8,000 euro) or, if the employer has not taken necessary measures to mitigate the risks for the employee and the employee suffers damage to their health, they may be liable for a fine of a maximum of 48,000 euro and imprisonment for between six months and three years. In the second case (whistleblower procedure), if an employer did not follow or has obstructed the procedure, they can be fined up to 5% of the annual revenue of the preceding year.

If the complaints involve allegations of sexual harassment, violence or bullying at work, the employer might risk an investigation of the inspection on supervision and well-being at work. If the prevention advisor finds out, before giving his advice, that the employer did not take any suitable protective measures after they were recommended, the prevention advisor is obliged to call an inspection on supervision and well-being at work.

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.

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]