Workplace Investigations

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.

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.

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.