Workplace Investigations
Contributing Editors
Workplace investigations are growing in number, size and complexity. Employers are under greater scrutiny as of the importance of ESG rises. Regulated industries such as finance, healthcare and legal face additional hurdles, but public scrutiny of businesses and how they treat their people across the board has never been higher. Conducting a fair and thorough workplace investigation is therefore critical to the optimal operation, governance and legal exposure of every business.
IEL’s Guide to Workplace Investigations examines key issues that organisations need to consider as they initiate, conduct and conclude investigations in 29 major jurisdictions around the world.
Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.
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15. Does the employee under investigation have a right to be accompanied or have legal representation during the investigation?
15. Does the employee under investigation have a right to be accompanied or have legal representation during the investigation?
Netherlands
Netherlands
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
All parties involved in the investigation have the right to a fair hearing. How this is embedded in the investigation should be laid down in the protocol drawn up at the start. When the employee, and others involved, receive an invitation for an interview in the context of an investigation, this invitation should include whether or not the employee has the right to bring legal representation to the interview. Given the unequal relationship between employer and employee, this will most likely be the case.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
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.
[1] Claudia Götz Staehelin, Unternehmensinterne Untersuchungen, 2019, p. 37.
[2] Simona Wantz/Sara Licci, Arbeitsvertragliche Rechte und Pflichten bei internen Untersuchungen, in: Jusletter 18 February 2019, N 59.
[3] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 392; Niklaus Ruckstuhl, BSK-StPO, Art. 158 StPO N 36.
16. If there is a works council or trade union, does it have any right to be informed or involved in the investigation?
16. If there is a works council or trade union, does it have any right to be informed or involved in the investigation?
Netherlands
Netherlands
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
There is, in principle, no role for the works council in an "isolated or single" internal investigation. When it comes to structural forms of employee monitoring to measure behaviour (such as video surveillance), the proposed decision to implement such a monitoring system in principle requires the prior approval of the works council.
In addition, according to the Act on the Protection of Whistleblowers, an employer who is not obliged to set up a works council needs the consent of more than half of the employees when adopting the internal reporting procedure under theAct, unless the substance of the procedure has already been laid down in a collective bargaining agreement.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
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.