Workplace Investigations

The workplace investigation can be exercised by an internal (ad hoc) investigation department of the company itself, for example under the direction of the internal audit department or compliance department. This is possible if there is sufficient manpower with the necessary independence, knowledge and experience. Case law, however, shows that courts tend to be more critical of internal investigations than external investigations. For more complex and sensitive investigations, a forensic accountant or lawyer is often involved. The advantage of involving a lawyer is that the investigation and its outcome are covered by privilege. This guarantees the confidentiality of the investigation, also regarding supervisors and investigating authorities. Yet, at the same time, there is increasing debate about the role of lawyers as investigators, given their inherent bias to work in the interests of their client (the employer).

The investigation starts with a plan of approach that must be signed by the contractor. This plan of approach outlines the legal framework of the investigation, such as the scope, the means to be used, how it will deal with data, the use of experts, how the interviews will be conducted, the way of reporting and confidentiality. Furthermore, there must be a protocol for how the investigator conducts the investigation and that applies to all parties involved.

Gathering information can be done in various ways. For example:

• An inventory can be made of the household effects of a company. In the event of theft, an inventory can be an appropriate means of establishing exactly what has been stolen.
• An investigation of the books: this is an investigation of all documents of the company. These are not private documents of employees, but documents of the company itself. For an investigator, an interview can be a good way to gather more information, for example by interviewing witnesses. In practice, there are almost always several interviews with the suspects, the employer and other people involved.
• Open source research, which often involves researching a person's social media, or public documents relevant to the research. In principle, “open sources” refers to all public documents in the world; nowadays, many public documents are digitised.
• A workplace search, which includes everything present in the workplace: diaries, computer files, e-mails, letters, and even the contents of a wastebasket.
• A digital data investigation: this is a frequently used tool in fraud investigations. Most communication and documents are digital nowadays. It is, therefore, very likely that evidence can be found in digital data. Each of these means of investigation must respect the principles of an internal investigation and comply with the GDPR principles .

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]

Suspension is usually a disciplinary measure. The employer may, for example, suspend an employee if it is necessary that the employee doesn't work during the investigation into their actions or omissions. Suspension has no specific legal basis in Dutch law, but several conditions can be derived from case law or collective labour agreements.

Overriding interest

The measure may only be taken if the employee's presence at work would cause considerable harm to the employer's business or if, due to other compelling reasons that do not outweigh the employee's interests, the employer cannot reasonably be expected to tolerate the employee's continued presence at work. If there is a well-founded fear that the employee will (among other things) frustrate the investigation into their actions, the employer may proceed to suspend the employee.

Procedural rules

The principle of acting in line with good employment practice (section 7:611 DCC) plays an essential role in the question of the admissibility of the suspension. The principle of due care leads, among other things, to a duty of investigation for the employer and means the employer must enable the employee to respond adequately to any accusations.

Contractual arrangements

Many collective agreements or staff handbooks contain regulations on suspension and deactivation. The regulation may concern the grounds, the duration or the procedure to be followed. The latter includes rules on hearing both sides of the argument, the right to assistance, how the decision must be communicated to the person concerned, and the possibility of “internal appeal” and rehabilitation. Under good employment practice, the employer must proceed swiftly with the investigation and allow the employee to respond to the results. If the employee hinders the investigation in any way, it can be a reason to continue the suspension during the investigation.

Pay

In 2003, the Supreme Court ruled that suspension is a cause for non-performance of work that must reasonably be borne by the employer according to section 7:628 DCC. The employee has a right to be paid in nearly all circumstances, with limited exceptions (eg, if the employee is in detention and the employer suspended the employee in response to that).

Duration

The duration of the suspension during a workplace investigation is not legally pre-determined. However, the suspension of an employee must be a temporary measure. The relevant collective agreement often stipulates how long the suspension may last.

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.

A distinction can be made between a non-public reprimand and a public reprimand. A non-public reprimand is a warning from the employer to the employee that certain behaviour by the employee may not be repeated. This is a relatively light measure. The employer can apply this measure to behaviour for which a verbal warning is insufficient or has already been given (more than once). The employer should confirm the reprimand to the employee in writing, so that it forms part of the employee's personnel file. It is important to have an acknowledgement so there is no dispute as to whether the reprimand has reached the employee. Often, the letter will also mention the consequences if the employee continues to behave in this way, so that the employee is aware of them. The employer then has reasonable grounds to apply a more severe disciplinary measure, such as suspension or dismissal, should the behaviour be repeated.

For a public reprimand, the warning is also made known to third parties. This is, therefore, a more severe measure than a non-public reprimand, as the honour and reputation of the employee are affected. A public reprimand must, therefore, be proportionate to the seriousness of the behaviour and will only be possible in the event of a serious offence, for which a non-public warning will not suffice. A public reprimand is also more likely if it is necessary to prevent other employees from engaging in the same behaviour (deterrent effect). Given the impact on the employee, it is important that the employer carefully investigates the facts and allows the employee to tell their side of the story (hearing both sides of the argument). A public reprimand is rarely given.

If the outcome of the investigation is that the employee is culpable, the employer can request that the court dissolves the employment agreement for that reason. The employer will have to show that continuation of the employment agreement is no longer possible. If the court rules that the employee is culpable, the employment agreement will be dissolved, observing the relevant notice period and paying the statutory transition payment. Only if the court rules that the employee has shown serious culpable behaviour, will the notice period not be taken into account and the transition payment will not be due.

If the employee has come into contact with the judicial authorities or is suspected of a criminal offence, but has not been convicted or detained (yet), the employer – when requesting the dissolution of the employment contract – will have to make a plausible case that, based on this suspicion alone, it can no longer be reasonably expected that the employment contract is upheld. This may be the case in a situation where the offence the employee is suspected of has repercussions on the employer, colleagues or customers and relations of the employer. In this situation, the court will assess whether a less drastic measure than dismissal, such as suspension, is sufficient to the interests of the employer.

If there is still no conviction but the employee is unable to perform his or duties due to being detained, the court reviews a request for dissolution in the same way as above. In this case, if the employee's payment of wages is discontinued, justice may already have been done to the employer's interests.

The final stage involves the conviction and detention of the employee. Although the dissolution of the employment contract under section 7:669 (3) under h DCC – which includes conviction and detention – is the most obvious option, it is still necessary to assess whether termination of the employment contract is reasonable because of the employee's conviction and detention. Although the seriousness of the offence, the duration of the detention and how this reflects on the employer are important factors, the court also takes the age, duration of the employment contract and the position of the employee on the labour market into account.

The most far-reaching dismissal method that can be considered is instant dismissal for an urgent reason (section 7:678 paragraph 1 in conjunction with section 7:677 paragraph 1 DCC). According to the case law of the Dutch Supreme Court, the question of whether there are compelling reasons must be answered based on all the circumstances of the case – to be considered together – including the nature and seriousness of what the employer considers to be compelling reasons, the nature and duration of the employment, how the employee performed their duties and the personal circumstances of the employee, such as age and the consequences for the employee of an instant dismissal.

Mere suspicion of a criminal offence will not easily qualify as an urgent reason, as follows from jurisprudence. At the same time, an employer can, instead of criminal suspicion as grounds for dismissal, also base its claim on the behaviour that underlies it. If the behaviour of the employee is already factually established, for example, because the employee has disclosed it to their employer or the employer has established it, the employer does not have to wait for the criminal proceedings before dismissing the employee.

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.