Workplace Investigations

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, during the investigation, the employee under investigation raises a grievance, the investigator will be expected to temporarily stop the investigation to assess the situation. The investigation team will evaluate whether the employee is raising a grievance as a defence mechanism or in good faith and with sincere concerns. If the subject of the grievance is related to the pending investigation, the investigation may be extended to cover this new item. Otherwise, a new investigation can be initiated by the investigation team.

Where an employee who is the subject of a workplace investigation raises his or her grievance during the investigation, the investigator should follow the same steps outlined above to triage new issues or claims. The investigator should also discuss with in-house counsel whether any particular steps should be taken to avoid the perception that any disciplinary measures taken against the employee (in the event the original claims are substantiated) were retaliatory.

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]

Investigation reports may be disclosed in potential lawsuits or judicial proceedings. Therefore, the investigation report must demonstrate that a detailed and objective investigation has been carried out. Courts may also request that the interview records be disclosed to them, failing which, the courts may resort to an adverse inference in civil proceedings. Criminal courts can also ask the interview records to be disclosed if this would be necessary for reaching the truth. Failure to disclose may entail criminal responsibility under certain conditions.

Once fact-finding is complete, the investigator should discuss his or her notes with in-house or outside counsel and prepare a summary of the process, high-level findings, and a proposed resolution at the counsel’s direction. This report should not include subjective commentary and should also avoid including excessive detail, and generally be treated confidentially during and after the investigation. If the report is requested by regulators or the police, the company should discuss with in-house counsel, and preferably also with outside counsel, how to respond to the request and whether any steps need to be taken to protect any applicable legal privilege.