Workplace Investigations

When conducting an internal investigation (which must have a legitimate purpose), the employer must act in accordance with the principles of proportionality and subsidiarity. In line with these principles, the means of collecting and processing personal data during an internal investigation as well as the data that is searched, collected or processed, should be adequate, relevant and not excessive given the purposes for which the data is being collected or subsequently processed. These principles can be complied with by, for example, using specific search terms when searching electronic data, limiting the investigation’s scope (subject matter, period, geographic locations) and, in principle, excluding an employee's private data.

The employer is, in principle, allowed to access documents, emails and internet connection history saved on computers that were provided to the employees to perform their duties, provided the requirements of proportionality and subsidiarity are taken into account. In other words, reading the employee's emails or searching electronic devices provided by the employer must serve a legitimate purpose (e.g. tracing suspected irregularities or abuse) and the manner of review or collecting and processing the data contained in such emails should be in accordance with the principles of proportionality and subsidiarity.

The employer can ask the employee to hand over an employee's USB stick for an investigation. Depending on company policies and (individual or collective) employment agreements, an employee is, in principle, not obliged to comply with such a request. A refusal from an employee, when there is a strong indication that this USB stick contains information that is relevant to an investigation into possible irregularities, may be to the disadvantage of an employee, for example in a dismissal case.

The following factors, which derive from the Bărbulescu judgment of the European Court of Human Rights, are relevant to the question of whether an employee's e-mail or internet use can be monitored:

• whether the employee has been informed in advance of (the nature of) the possible monitoring of correspondence and other communications by the employer;
• the extent of the monitoring and the seriousness of the intrusion into the employee's privacy;
• whether the employer has put forward legitimate grounds for justifying the monitoring;
• whether a monitoring system using less intrusive methods and measures would have been possible;
• the consequences of the monitoring for the employee; and
• whether the employee has been afforded adequate safeguards, in particular in the case of intrusive forms of monitoring.

These requirements can sometimes create a barrier for employers, as seen in a ruling by the District Court Midden-Nederland (16 December 2021, ECLI:NL:RBMNE:2021:6071) in which the employer had used information obtained from the employee's e-mail as the basis for a request for termination of the employment contract. In the proceedings, the employee argued that his employer did not have the authority to search his e-mail.

According to the District Court, it was unclear whether the employer had complied with the requirements of Bărbulescu regarding searching the employee's e-mail. The regulations submitted by the employer only described the processing of data flows within the organisation in general. Therefore, the District Court found that the employer did not have a (sufficient) e-mail and internet protocol and the employee was not properly informed that his employer could monitor him. In addition, according to the District Court, it was unclear what exactly prompted the employer to search the employee's e-mail, as the employer did not provide any insight into the nature and content of the investigation. As a result, the District Court was unable to determine whether the employer had legitimate grounds to search the employee's e-mail. On this basis, the District Court disregarded the (possibly) illegally obtained evidence and ruled against the employer's termination request.

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]

The former Act on the House for Whistleblowers already provided for several preconditions that a whistleblowing procedure must meet. For example, internal reporting lines must be laid down, as well as how the internal report is handled, and an obligation of confidentiality and the opportunity to consult an advisor in confidence must be applied. Employers are obliged to share the whistleblowing policy with employees, including information about the employee's legal protection. The employee who reports a suspicion of wrongdoing in good faith may not be disadvantaged in their legal position because of the report (section17e/ea Act House of Whistleblowers).

The starting point is that an employee must first report internally, unless this cannot reasonably be expected. If the employee does not report internally first, the House for Whistleblowers does not initiate an investigation. The House for Whistleblowers was established on 1 July 2016 and has two main tasks: advising employees on the steps to take and conducting an investigation in response to a report.

The Act on the Protection of Whistleblowers, which entered into force in 2023, introduced several changes, of which the most relevant are:

• Abolition of mandatory internal reporting: the obligation to report internally first is abolished. Direct external reporting is allowed, such as to the House for Whistleblowers or another competent authority. When reporting externally, the reporter retains his protection. However, reporting internally first remains preferable and will be encouraged by the employer as much as possible.
• Expansion of prohibition on detriment: the prohibition on detriment already included prejudicing the legal position of the reporter, such as suspension, dismissal, demotion, withholding of promotion, reduction of salary or change of work location. It now also includes all forms of disadvantage, such as being blacklisted, refusing to give a reference, bullying, intimidation and exclusion. 
• Stricter time limit requirements for internal reporting: the reporter must receive an acknowledgement of receipt of the report within seven days and the reporter must receive information from the employer on the assessment of their report within a reasonable period, not exceeding three months.

• Extension of the circle of protected persons: not just employees, but third parties who are in a working relationship with the employer are now also protected, such as freelancers, interns, volunteers, suppliers, shareholders, job applicants and involved family members and colleagues.

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.