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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01. What legislation, guidance and/or policies govern a workplace investigation?
01. What legislation, guidance and/or policies govern a workplace investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Before commencing a workplace investigation, an employer must review the terms of any applicable employment contract, policy, procedure or industrial instrument. These documents will likely contain clauses that will dictate the investigation process.
There is also a significant body of common law that dictates how an investigation should be conducted and the procedural fairness that should be afforded to those involved. To ensure a workplace investigation is procedurally fair, employers must consider several factors, including:
- putting all allegations to the respondent in a manner which does not suggest a pre-determination of the outcome;
- conducting the investigation in a timely manner;
- providing the respondent with the opportunity to respond to the allegations;
- conducting a fair investigation process;
- making an unbiased (and not pre-determined) decision; and
- permitting the respondent and complainant to involve a support person or union representative.
Employers should also consider the additional steps they can take to conduct a best-practice investigation, including:
- being thorough and taking the time to plan the investigation;
- communicating clearly and fairly;
- considering whether the allegations are indicative of a wider workplace behaviour problem;
- maintaining confidentiality; and
- preventing victimisation.
Finland
Finland
- at Roschier
- at Roschier
Mainly, the Occupational Safety and Health Act (738/2002). In addition, the following also have relevance in connection to a workplace investigation: the Employment Contracts Act (55/2001), the Criminal Code (39/1889), the Act on Occupational Safety and Health Enforcement and Cooperation on Occupational Safety and Health at Workplaces (44/2006), the Act on Equality between Women and Men (609/1986) and the Non-discrimination Act (1325/2014). In addition, the employer's own policies must be taken into consideration while conducting a workplace investigation.
France
France
- at Bredin Prat
- at Bredin Prat
No specific rules directly govern a workplace investigation in the event of employee misconduct. However, several rules, both legal and administrative, affect the conduct of such an investigation. In addition, codes of conduct, internal regulations or guidelines may also exist within companies.
A new law (No. 2022-401) came into effect on 1 September 2022 and constitutes one of the cornerstones for future regulation of workplace investigations. This law transposes into French law the European directive relating to whistleblower protection. It does not, however, constitute a revolution, as a previous French law dated 9 December 2016 (the so-called Sapin 2 Law) already provided the whistleblower with a specific status and protection. These laws are fundamental when considering an internal investigation as the rules protecting the whistleblower and requiring the establishment of an internal whistleblowing channel (eg, a dedicated email or hotline) affect the degree of flexibility available to companies in conducting the investigation.
A new decree has been adopted (No. 2022-1284), dated 3 October 2022, for application of these new provisions. This decree sets out several obligations relating to the internal whistleblowing reporting process. The reporting channel will necessarily contribute to shape the internal investigation triggered by situations which have been reported by that channel. Companies subject to this decree may define the reporting procedure using the supporting tool of their choice (company collective agreement, internal memorandum, etc.), as long as the employee representative bodies are duly consulted on the matter. The decree also specifies that an acknowledgement of receipt of the alert must be provided to the author of the alert in writing within seven days from the company receiving the alert. The author of the alert must also be informed in writing, within a reasonable period not exceeding three months from acknowledgement of receipt of the alert, of the measures envisaged or taken to assess the accuracy of the allegations and, where appropriate, to remedy the situation which had been reported, as well as the reasons for these measures and, finally, the closure of the case.
More generally, not only do all the “pure” labour law rules relating to the protection of the human rights of employees need to be complied with (right to privacy, data protection under the GDPR, etc), but also the disciplinary rules and regulations that protect employees from unfounded sanctions imposed by their employer. For example, an employer can only sanction an employee's misconduct if the disciplinary procedure begins within two months of when the misconduct was committed or when the employer becomes aware of it. In this respect, an internal investigation can be necessary for the employer to obtain full knowledge of the facts alleged to have been committed by the employee. It is nonetheless recommended that the internal investigation be completed within these two months to avoid the risk of the disciplinary action being time-barred.
Administrative rules produced by the French anti-corruption agency should also be taken into consideration (good practice, guidelines and recommendations relating to senior management’s commitment to implement anti-corruption measures, corruption risk mapping, corruption risk management measures and procedures), as well as the guidelines produced by the French Ministry of Employment relating to the prevention of sexual harassment and gender-based violence or the recommendations of the Human Rights Defender, which is a French special institution aimed at protecting fundamental rights.
When the investigation in question concerns moral or sexual harassment or violence in the workplace, the national interprofessional agreement of 26 March 2010 should be <referred to. This text stipulates that in the event of an investigation procedure, it should be based on, but not limited to, the following guiding principles:
- it is in everyone's interest to act with the discretion necessary to protect everyone's dignity and privacy;
- no information, unless it is anonymized, should be divulged to parties not involved in the case in question;
- complaints must be investigated and dealt with without delay;
- all parties involved must be listened to impartially and treated fairly;
- complaints must be supported by detailed information;
- deliberate false accusations must not be tolerated, and may result in disciplinary action;
- external assistance may be useful, notably from occupational health services.
Many are calling for the adoption of legislative rules governing such investigations, and their coordination with general whistleblower protection measures.
Finally, a company must take its own rules and regulations into account. Every company with at least 50 employees has the legal obligation to draw up internal rules and regulations, which notably set out the disciplinary sanctions applicable to employees, as well as a reminder of certain employees' rights.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Workplace investigations in Sweden are governed by several rules and regulations. Listed below are the central legislation and regulations that govern a workplace investigation related to alleged employee misconduct.
- The Swedish Discrimination Act (2008:567).
- The Swedish Work Environment Act (1977:1160), which is complemented by the Swedish Work Environment Authority’s other statutes.[1]
- The Swedish Whistleblowing Act (2021:890).
If a workplace investigation has been initiated after the receipt of a report filed through a reporting channel established under the Swedish Whistleblowing Act, that law applies provided that the report has been filed by a person who may report under the Act and provided that the subject of the report falls under the material scope of the Act. The Swedish Whistleblowing Act implements Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law and has been given a wide material scope in Sweden. The Swedish Whistleblowing Act may apply if the reported irregularity concerns breaches of certain EU laws or if the reported irregularity is of public interest.
In addition to the regulations mentioned above, certain data protection legislation may affect workplace investigations by restricting what personal data may be processed. Such data protection legislation includes the following:
- Regulation (EU) 2016/679 on the protection of natural persons concerning the processing of personal data and the free movement of such data (the GDPR);
- the Swedish Supplementary Data Protection Act (2018:218);
- the Swedish Supplementary Data Protection Regulation (2018:219);
- Regulation DIFS:2018:2 on the processing of personal data relating to criminal convictions or offences. This regulation governs the processing of personal data relating to criminal convictions or suspected criminal offences in internal workplace investigations that are not governed by the Swedish Whistleblowing Act.[2]
The above-mentioned legislation and regulations may overlap in many aspects and it is therefore important before starting an investigation, as well as during an investigation, to assess which rules and regulations apply to the situation at hand. Another aspect of this is that many issues that can arise during an investigation are not regulated by law or other legislation. If the investigation is a non-whistleblowing investigation there are limited rules on exactly how and by whom the investigation should be carried out.
A Swedish law firm that undertakes a workplace investigation also has to adhere to the Swedish Bar Association’s Code of Conduct. The Code of Conduct includes additional considerations, mainly ethical, which will not be addressed in this submission. Furthermore, this submission will not focus on investigations following an employee’s possible misappropriation of proprietary information or breach of the Swedish Trade Secrets Act (2018:558). Investigations into such irregularities are often conducted to gather evidence and these investigations include the same or similar investigative measures used in other investigations, such as interviews with employees and IT-forensic searches, but also infringement investigations carried out by the authorities or other measures by the police.
[1] Mainly Systematic Work Environment Management (AFS 2001:1), Organisational and Social Work Environment (AFS 2015:4) and Violence and Menaces in the Working Environment (AFS 1993:2)
[2] Under Section 2 item 4 of DIFS 2018:2, personal data relating to criminal convictions or suspected criminal offences may only be processed if the personal data concerns serious misconduct, such as bribery, corruption, financial fraud or serious threats to the environment, health and safety, by an individual who is in a leading position or who is considered key personnel within the company. The processing of personal data received in a report or collected during an investigation governed by the Swedish Whistleblowing Act is instead governed by the Swedish Whistleblowing Act, which complements the GDPR and the supplementing Swedish act and regulation stated in item (ii) and (iii) above.
02. How is a workplace investigation usually commenced?
02. How is a workplace investigation usually commenced?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
A workplace investigation will generally be triggered by an employee making a complaint; however, issues may also be brought to the attention of an employer through an anonymous tip, by suppliers or contractors, from customers or because of observations and hearsay.
Complaints can be made directly to Human Resources (HR), anonymously, by email to a line manager or a third party. While complaints do not need to be written and can be informal, brief or verbal, complaints of this nature can make the process harder and more information may be required.
The receipt of a complaint does not necessarily mean that an employer needs to undertake an investigation immediately. A grievance policy ordinarily contains a multi-step approach to dealing with complaints, starting with internal resolution options such as informal discussions, conciliation and mediation. However, an investigation should be commenced where:
- the complaint alleges serious misconduct or unlawful conduct;
- the employer is required to conduct a workplace investigation as per an employment contract, policy, procedure or industrial instrument; or
- the complaint is complex and requires clarity on what has occurred to establish the facts.
Finland
Finland
- at Roschier
- at Roschier
When the employer becomes aware of possible misconduct, the employer must commence an investigation immediately, in practice within about two weeks. The information may come to the employer's knowledge via, for example, the employer's own observations, from the complainant or their colleagues or an employee representative.
France
France
- at Bredin Prat
- at Bredin Prat
When a report of wrongdoing is brought to the employer's attention, whether through a whistleblower or another channel, and an internal investigation is expected, it may be either mandatory or optional, depending on the facts of the alleged wrongdoing.
The investigation will be mandatory when the alleged wrongdoing relates to an ethical issue according to anti-corruption regulations, the employer’s duty of due diligence regarding, for example, human rights or environmental matters, or where the works council has issued an alert relating to a “serious and imminent danger” (or to “fundamental human rights”), but also whenever it relates to the employer's obligation to ensure employee safety (eg, moral or sexual harassment).
If the investigation is not mandatory, it is up to the employer to decide whether or not to carry out the investigation. Several key questions can help the employer determine whether or not it is appropriate to carry out an investigation, such as:
- What are the benefits of doing nothing? The company will have to draw up a list of the pros and cons of an investigation, bearing in mind that in some cases a poorly conducted investigation could make the situation worse;
- What is the priority (eg, obtaining or securing evidence, or correcting the irregularity)?
- What rules or codes of ethics must the company comply with?
- Should external legal counsel only advise the company or should they play a major role in the investigation process by becoming an investigator?
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
An investigation can be initiated in several ways. It is usually as a result of whistleblowing or a report on work environment deficiencies, or through other channels (eg, HR, the police, media coverage).
03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)?
03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
It is an important consideration as to whether any of the employees involved in the investigation should be suspended, stood down or asked to undertake alternative duties for the period of the investigation. This decision will need to be made taking into consideration the nature of the complaint, any further damage to workplace relationships that could be caused by employees continuing to interact with each other, and potential work, health and safety issues.
It should not be automatic that the respondent is suspended as the employer will need to consider whether this is necessary in the circumstances. However, a period of suspension should be considered where:
- the allegations involve serious misconduct;
- there is a risk that the conduct will continue throughout the investigation;
- the respondent’s presence could exacerbate the situation; or
- the respondent’s presence could be disruptive to the investigation.
As an alternative to suspension, other options include working from home, performing amended duties or moving to a different workspace.
If an employee is suspended then they should ordinarily receive their full pay for this period. There are some exceptions to this, for example, if the employee is a casual employee or if a policy, employment contract or other industrial instrument allows the employee to be suspended without pay.
Generally, there is no minimum or maximum period a suspension should last, as this will depend on the length of the investigation.
Finland
Finland
- at Roschier
- at Roschier
There is no legislation on temporary suspension in the event of a workplace investigation or similar. In some situations, the employer may relieve the employee from their working obligation with pay for a short period.
France
France
- at Bredin Prat
- at Bredin Prat
An employee may be suspended or relocated during a workplace investigation by:
- suspending the employee as a precautionary measure (eg, pending a confirmation of dismissal);
- temporarily assigning the employee to another site; or
- exempting the employee from having to work while continuing to pay them their salary.
The employee can be suspended as a precautionary measure, pending confirmation of dismissal, but this implies that disciplinary proceedings have already begun and that the investigation is therefore at a relatively advanced stage and that there is sufficient evidence to suggest the need for disciplinary action. It should be made clear to the employee that the suspension is a provisional measure (in the absence of specifying this, the suspension could be interpreted as a disciplinary layoff constituting a sanction and, in some jurisdictions, as depriving the employer of the possibility of dismissing the employee for the same facts).
Temporary reassignment can also be considered. However, this contractual change must not apply for long and the measure taken must be temporary. The employer must act promptly – the measure is only valid for as long as the investigation continues. Failing this, and because of the absence of concurrent disciplinary proceedings, there is considerable risk that the temporary reassignment may be reclassified by a judge as an illegal modification of the employment contract or as a disciplinary sanction preventing the employee from subsequently being dismissed.
Finally, paid exemption from work is also possible and consists of temporarily suspending, by mutual agreement, the obligation of the employer to provide work for the employee and the employee’s obligation to work, without affecting their remuneration. Such a measure must generally be taken with the consent of the employee, because it implies a suspension (and therefore a modification) of the employment contract. This measure may be useful in temporarily removing an employee with whom the employer maintains a good relationship. This may be an employee who is or feels they are a victim of harassment, especially when the employee is not on sick leave.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
In general, an employee in the private sector may be temporarily suspended for a short period with pay and other benefits during a workplace investigation. The room for suspension without pay is, by contrast, very limited. An applicable collective bargaining agreement may impose additional restrictions on the right to temporary suspend an employee. The suspension should be limited in time and only be in force during the investigation, but can be repeated for (multiple) additional short periods if necessary to conclude the investigation. An assessment needs to be made on a case-by-case basis as suspension in some cases may be considered unlawful. If not executed with sufficient consideration of the employee’s interests, it may be considered a constructive dismissal or a breach of the employer’s work environment obligations. If the employee is unionised, trade unions sometimes request that the employer initiates consultations as part of a decision to suspend an employee.
In the public sector, the right to suspension is limited. There are also special regulations regarding the suspension of certain employees, for example, employees who are employed as permanent judges.
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Once the decision to undertake a workplace investigation has been made, it is important to decide who is the most appropriate person to conduct the investigation. For the investigation process to run smoothly a single lead investigator should be selected, although they may work with a larger team. The lead investigator and investigation team can be internally or externally appointed.
In deciding whether to appoint an external investigator an employer should consider:
- the nature of the allegations;
- the seniority of the respondent;
- whether a fair investigation can be conducted internally without any actual or perceived bias;
- whether there is a dedicated HR department with someone who has the required capability, skills and experience to conduct the investigation; and
- whether the employer wants the investigation to be covered by legal professional privilege.
If the employer decides to investigate the matter internally without appointing a third party, then the investigator does not need to have any specific qualifications. However, it is prudent to confirm that the investigator has the time and skills to conduct the investigation and that they can be objective.
Finland
Finland
- at Roschier
- at Roschier
The employer must conduct the investigation, but the actual work can be done either by the employer's personnel or by an external investigator, for example, a law firm. Either way, there are no formal criteria for the persons executing the investigation; however, impartiality is required from the person conducting the investigation
France
France
- at Bredin Prat
- at Bredin Prat
In determining who is to conduct a workplace investigation, the main objective is to ensure that the team is independent or at least that it is perceived as being independent. The key people in the investigation team can be identified in a pre-established procedure. It is good practice to give decision-makers the possibility to set up, on a case-by-case basis, the team most appropriate to the situation.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
If the workplace investigation falls under the Swedish Whistleblowing Act, the investigation has to be conducted by independent and autonomous persons or entities designated under the Swedish Whistleblowing Act as competent to investigate reports.
If the workplace investigation is not governed by the Swedish Whistleblowing Act, there are no minimum qualification requirements. When appointing an investigator, one should consider who would be most suitable in the given situation. For example, it may in some situations be more suitable to have an external investigator to ensure impartiality.
05. Can the employee under investigation bring legal action to stop the investigation?
05. Can the employee under investigation bring legal action to stop the investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
The respondent has several rights including the right to have the complaint investigated in a fair, impartial and adequate manner, to hear the allegations in full and to not be victimised. However, there is no avenue for a respondent to bring legal action to stop a procedurally fair investigation.
In 2014, Australia introduced an anti-bullying jurisdiction which gave the Fair Work Commission (FWC) the powers to issue a Stop Bullying Order. There have been circumstances where it has been successfully argued that an investigation itself amounted to bullying and accordingly the respondent applied to the FWC for a Stop Bullying Order to suspend the investigation.
Finland
Finland
- at Roschier
- at Roschier
The employee does not have a legal right to stop the investigation. The employer must fulfil its obligation to investigate the alleged misconduct.
France
France
- at Bredin Prat
- at Bredin Prat
An internal investigation is not a police enquiry or a judicial instruction; there is no legal provision enabling an employee to stop the investigation. At the same time, there is no legal provision enabling the employer to force an employee to be interviewed. Interviewing an employee within the context of an internal investigation is also not a disciplinary matter. Therefore, the employee has no right to be assisted by another employee or an employee representative. The employee could, however, lawfully request the presence of their lawyer, especially if the company’s lawyer is part of the investigation team.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
No. It should, however, be noted that the employee under investigation may claim a right to rectification under article 16 of the GDPR and its right to object to processing under article 21 of the GDPR. This may give the employee under investigation an undesirable opportunity to withhold evidence and obstruct or impede the investigation. The risk of these rights being exercised is, however, considered to be low.
06. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?
06. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Co-workers can be interviewed as part of an investigation where they are witnesses to a complaint. If the employee refuses to attend the interview or is generally not cooperating with the investigation, the reasons for this will need to be considered carefully by the employer. Employers should consider whether there can be any amendments made to the interview process to accommodate the employee. However, an employer can make a reasonable and lawful direction to an employee to attend an interview. If an employee fails to comply with a lawful and reasonable direction, then it may constitute grounds for disciplinary action.
Witnesses who are employees are entitled to the legal protections that ordinarily attach to their employment, including not being bullied, discriminated against, or harassed and having their health and safety protected. Employers should also ensure that witnesses are not victimised as a result of participating in the investigation and that confidentiality is maintained.
Finland
Finland
- at Roschier
- at Roschier
There is no legislation on a witness's role in investigations. However, the legislation on occupational safety requires that employees must report any irregularities they observe. Depending on the situation, participating in the investigation may also be part of the person's work duties, role or position, in which case the employer may require the employee to contribute to clarifying the situation. However, there is no formal obligation to act as a witness, and there is no legislation regarding the protection of witnesses. If a witness wishes, they may have, for example, an employee representative as a support person during the hearing.
France
France
- at Bredin Prat
- at Bredin Prat
Co-workers can spontaneously act as witnesses and provide statements to superiors before, during or after the interviews. Co-workers can also be interviewed as witnesses at the investigator’s request, although they are not under any obligation to answer the questions and they cannot be compelled to do so. The investigators have an absolute obligation of discretion during the investigation and cannot reveal any details of the information gathered.
Certain employees may benefit from whistleblower status, which implies that they may be exempt from potential criminal and civil liability relating to their report or testimony and they are protected from any retaliatory measures from the employer. “Facilitators” who helped the whistleblower and the individuals connected with the whistleblower and risk retaliatory measures by testifying as a witness may also benefit from this status, as of 1 September 2022.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
In general, yes, employees in Sweden have a far-reaching duty of loyalty toward their employers. This includes, among other things, a duty to truthfully answer an employer’s questions and to inform the employer of events that may be of interest to the employer. An employee’s obligation to assist is, however, more limited when assistance would entail self-incrimination.
A person acting as a witness under an investigation governed by the Swedish Whistleblowing Act will be protected by confidentiality. Personal data and details that could reveal the identity of a witness may not be disclosed without authorisation.
07. What data protection or other regulations apply when gathering physical evidence?
07. What data protection or other regulations apply when gathering physical evidence?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
As part of an investigation, the investigator may want to collect evidence such as camera footage from CCTV, swipe card records, computer records, telephone records or recordings and GPS tracking. There are state-based workplace surveillance laws that operate in each jurisdiction in Australia. The laws recognise that employers are justified in monitoring workplaces for proper purposes, but this is balanced against employees’ reasonable expectations of privacy.
The Privacy Act 1988 (Cth) (Privacy Act) also regulates how certain organisations handle personal information, sensitive personal information and employee records. The Privacy Act contains 13 privacy principles that regulate the collection and management of information. Employers should familiarise themselves with the privacy principles before conducting any investigation to ensure they are not in breach when gathering evidence.
Finland
Finland
- at Roschier
- at Roschier
Generally, the basic principles set out by the GDPR and the Finnish Data Protection Act apply to data processing in connection with investigations, including evidence gathering: there must be a legal basis for processing, personal data may only be processed and stored when and for as long as necessary considering the purposes of processing, etc.
Additionally, if physical evidence concerns the electronic communications (such as emails and online chats) of an employee, gathering evidence is subject to certain restrictions based on Finnish ePrivacy and employee privacy laws. As a general rule, an employee’s electronic communications accounts, including those provided by the employer for work purposes, may not be accessed and electronic communications may not be searched or reviewed by the employer. In practice, the employer may access such electronic correspondence only in limited situations stipulated in the Act on Protection of Privacy in Working Life (759/2004), or by obtaining case-specific consent from the employee, which is typically not possible in internal investigations, particularly concerning the employee suspected of wrongdoing.
However, monitoring data flow strictly between the employee and the employer's information systems (eg, the employee saving data to USB sticks, using printers) is allowed under Finnish legislation, provided that employee emails, chats, etc, are not accessed and monitored. If documentation is unrelated to electronic communications, it also may be reviewed by the employer. Laptops, paper archives and other similar company documentation considered "physical evidence" may be investigated while gathering evidence on the condition that any private documentation, communications, pictures or other content of an employee are not accessed.
France
France
- at Bredin Prat
- at Bredin Prat
GDPR principles fully apply to data gathering, as well as case law protecting the right to respect one’s private life and the secret of correspondence.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
To the extent the gathering of physical evidence includes the processing of personal data, please see question 1.
08. Can the employer search employees’ possessions or files as part of an investigation?
08. Can the employer search employees’ possessions or files as part of an investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
The starting position is that there is no general right for an employer to search an employee’s possessions. However, an employer may be able to undertake a search in circumstances where:
- the employee consents to the search;
- there is a “right to search” contained in a contract, policy, procedure or industrial instrument; or
- the request to search constitutes a lawful and reasonable direction.
If an employee agrees to a search of their possessions, this consent should be confirmed in writing. If the employee does not consent then the employer can issue a direction to the employee. If the direction is lawful and reasonable, and the employee does not comply, then disciplinary action may be considered.
Finland
Finland
- at Roschier
- at Roschier
Only the police can search employees' possessions (assuming that the prerequisites outlined in the legislation are met).
France
France
- at Bredin Prat
- at Bredin Prat
In internal investigations, the fundamental rights and freedoms of employees are at stake, including the right to privacy, respect for the privacy of home life and correspondence, freedom of expression, and the obligation of loyalty in searching for evidence.
In principle, work emails and files can be reviewed, even without the employee's consent, prior knowledge or warning. This includes: work email accounts; files stored on a work computer or a USB key connected to a work computer; and SMS messages and files stored on a work mobile phone and documents stored in the workplace unless they are labelled as “personal”. On the other hand, it is not permissible for an employer (or an investigator) to review “personal” emails and files, such as documents or emails identified as “personal” by the employee, or personal email accounts (Gmail, Yahoo, etc), even if accessed from a work computer.
There are certain exceptions to the above principle. An employer is allowed to check “personal” emails or data in any of the following cases:
- if the employee is present during the review;
- if the employee is absent, but was duly notified and invited to be present;
- if there is a particularly serious “specific risk or event”;
- if the review is authorised by a judge (this means having to prove a legitimate reason justifying not informing the employee).
When documents or emails are not marked as “personal” but contain information of a personal nature, the employer may open and review the data but may not use such documents or emails to justify applying disciplinary measures to the employee or use such documents or emails as evidence in court if they indeed relate to the employee’s private life.
Special attention must be given to employee representatives who must be entirely free to carry out their duties.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
An employer can search an employee’s personal possessions (eg, handbag, pockets and locker) if the employer has a legitimate interest in a search. This could, for example, include a reasonable suspicion of theft of employer property. Furthermore, an employer may search, but not continually monitor, an employee’s computer and email provided that it is in accordance with GDPR requirements. For the processing to be lawful under the GDPR, the employer has to establish a purpose and a legal basis for the processing of personal data. Furthermore, data subjects must have received information on the legal basis for and purpose of the processing of personal data beforehand. If the data subjects have not received such information, the employer’s right to process their data is limited. However, if the employer has reasonable grounds to believe that trade secrets or similar has been copied and stolen, no such requirements would typically apply.
Investigations into an employee's possessions may, under certain circumstances, also be carried out by the Swedish authorities.
09. What additional considerations apply when the investigation involves whistleblowing?
09. What additional considerations apply when the investigation involves whistleblowing?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
A complaint will be a whistleblowing complaint where a complainant has reasonable grounds to suspect that the information they are disclosing about the organisation concerns misconduct or an improper state of affairs or circumstances. The information can be about the organisation or an officer or employee of the organisation engaging in conduct that:
- breaches the Corporations Act 2001 (Cth);
- breaches other financial sector laws;
- breaches any other law punishable by 12 months’ imprisonment; or
- represents a danger to the public or the financial system.
Since 2020, all public companies, large proprietary companies and trustees of registrable superannuation entities in Australia are required to have a whistleblower policy. Employers conducting an investigation will need to follow the processes outlined in their policy.
One of the key differences when conducting an investigation that involves whistleblowing is identity protection and the ability of the whistleblower to disclose anonymously and remain anonymous.
Finland
Finland
- at Roschier
- at Roschier
In respect of data protection, the processing of personal data in whistleblowing systems is considered by the Finnish Data Protection Ombudsman (DPO) as requiring a data protection impact assessment (DPIA).
France
France
- at Bredin Prat
- at Bredin Prat
Evidence obtained in the context of an investigation must specify who provided it and the date it was provided. No retaliatory measures may be taken against the whistleblower for the act of whistleblowing.
In certain cases, the whistleblower report must be forwarded to the judicial authorities (eg, when there is an obligation to assist persons in imminent danger, for serious offences or a disclosure that a vulnerable person is in danger (ie, minors under 15 or a person who is unable to protect themselves)).
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
If the Swedish Whistleblowing Act governs the investigation, additional considerations apply relating to who may investigate a reported irregularity (see question 4) and the duty of confidentiality and restrictions on access to and disclosure of personal data in investigations (see questions 6, 10 and 11), as well as the rights and protections of whistleblowers.
As regards the rights and protections of whistleblowers, the following can be noted. A person reporting in a reporting channel governed by the Swedish Whistleblowing Act is protected against retaliation and restrictive measures. Thus, companies are prohibited from preventing or trying to prevent a person from reporting, and retaliating against a person who reports. Furthermore, a reporting person will not be held liable for breach of confidentiality for collecting the reported information if the person had reasonable grounds to believe that it was necessary to submit the report to expose irregularities. Under the Swedish Whistleblowing Act, any person reporting irregularities in a reporting channel established under the Swedish Whistleblowing Act may also report irregularities to designated Swedish authorities.
10. What confidentiality obligations apply during an investigation?
10. What confidentiality obligations apply during an investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Confidentiality protects the interests of the persons involved in the investigation as well as the integrity of the investigation. Before providing information as part of the investigation, employers should direct the complainant, respondent or witnesses to sign confidentiality agreements. This agreement should direct the person to refrain from discussing the investigation or matters that are the subject of the investigation with any person other than the investigator.
It is also best practice for participants in the investigation to be directed not to victimise (threaten or subject to any detriment) any persons who are witnesses to or are otherwise involved in the investigation.
After an investigation, employers should write to the complainant, respondent and any witnesses reminding them of their ongoing confidentiality obligations.
Finland
Finland
- at Roschier
- at Roschier
Concerning a workplace investigation, there is no specific legislation in force at the moment regarding confidentiality obligations. All normal legal confidentiality obligations (eg, obligations outlined in the Trade Secrets Act (595/2018)), and if using an external investigator, the confidentiality obligations outlined in the agreement between the employer and the external investigator, apply. Attorneys-at-law always have strict confidentiality obligations as per the Advocates Act (496/1958).
France
France
- at Bredin Prat
- at Bredin Prat
Interviewers, investigators, interviewees or any others involved in the investigation are often bound by a reinforced confidentiality obligation, particularly when the internal investigation is triggered by a whistleblower alert. In addition, every person that comes to know of the investigation, facts or people involved is bound by an obligation of discretion. Furthermore, investigators should specifically be trained for interviews and be reminded of their obligations relating to the investigation.
The investigators will need to determine the order of the tasks to be carried out in the investigation, as this will have a significant impact on confidentiality management. Should they start with the hearings or a review of documents? The answer may depend on the subject matter of the investigation. It is advisable to first review the documentation before organising interviews, particularly to avoid the destruction of certain documents by employees acting in bad faith or by those wishing to erase the traces of alleged wrongdoing. Sometimes, however, it is possible to start with the interviews, especially in the case of harassment, as there may be no documents to review. If the decision is taken to conduct the documentation review after the interviews, it could be useful to ask the employees involved to sign a document stating that they must preserve and retain documents, meaning that if they delete or destroy documents, they would be acting against the company and in breach of the law.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
If the Swedish Whistleblowing Act applies, the persons or entities handling the investigation have a duty of confidentiality and may not, without permission, disclose any information that could reveal the identity of the reporting person, any person subject to the report or any other person mentioned in the report or during the investigation of the report. Access to personal data is limited to designated competent entities or persons. Investigative material including personal data may not be shared with other persons or entities during the investigation. Once the investigation has reached actionable conclusions, investigative material may be shared with other persons or entities, such as HR or the police, provided that such sharing is necessary to take action on the outcome of the investigation. Investigative material may also be shared if it is necessary for the use of reports as evidence in legal proceedings or under the law or other regulations.
If the Swedish Whistleblowing Act does not apply, there are no particular confidentiality obligations for employers. Yet, an employer needs to consider what information is suitable to share during an investigation, how this is done and to whom it is shared. An employer must also respect employees’ privacy in line with what is generally considered good practice in the labour market. This means that an employer should be careful as to what sensitive and personal information is shared during an investigation. Furthermore, the spreading of damaging information (even if true) about an employee to a wider group may be a criminal offence under the Swedish Criminal Code.
11. What information must the employee under investigation be given about the allegations against them?
11. What information must the employee under investigation be given about the allegations against them?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
To ensure procedural fairness, the allegations must be put to the respondent in writing in advance of the investigation interview. The allegations must be specific, but the respondent does not need to be provided with a copy of the original complaint. The respondent should also be informed that if the allegations are substantiated they may result in disciplinary action up to and including the termination of the employee’s employment.
Finland
Finland
- at Roschier
- at Roschier
The process must be transparent and impartial, and therefore all the information that may influence the conclusions made during the investigation should be shared with the employee.
France
France
- at Bredin Prat
- at Bredin Prat
According to the French data protection authority, the employee under investigation must be informed of the name of the person in charge of the investigation, the alleged facts that have led to the whistleblowing alert and their rights to access and rectify data collected about them. This information must be given as soon as the data collection starts, before the interviews, as per GDPR principles.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
According to article 14 of the GDPR, no information must be provided. The exemption in article 14.5(b) applies to the extent the obligation to provide such information is likely to render impossible or seriously impair the objectives of the processing of the personal data of the employee under investigation (ie, to diligently investigate the suspected irregularity).
If the Swedish Whistleblowing Act applies, information about where the personal data processed originates from may not be provided under article 14 of the GDPR, as the personal data must remain confidential subject to obligations under the Swedish Whistleblowing Act.
In addition to the above, an investigation should, to the extent possible and suitable, be characterised by the principles in ECHR (particularly articles 6 and 8). The employee under investigation should, among other things, be presented with sufficient information to safeguard his or her interests and be allowed to respond to the allegations. The investigation must also be compliant with the work environment responsibilities that the employer has concerning the involved parties (see questions 17 and 20).
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Employers will generally take steps to treat complaints sensitively and confidentially. However, because of the obligations employers have, confidentiality cannot be guaranteed as part of the investigation and the complainant, respondent and witnesses should be made aware of this.
Understandably, the complainant or witnesses may wish to remain anonymous. However, because the details of the allegations need to be put to the respondent so that they can provide an informed response or explanation, the source of the information will often need to be disclosed.
Employers can take steps to “ringfence” the investigation by asking employees to sign a confidentiality agreement. This will protect the interests of the participants of the investigation and uphold the integrity of the investigation.
Finland
Finland
- at Roschier
- at Roschier
See question 11, there is no protection of anonymity as the process must be transparent to the parties involved.
France
France
- at Bredin Prat
- at Bredin Prat
The identity of the complainant must be kept confidential and cannot be disclosed. There are two exceptions: if the complainant consents to the disclosure; or if the employer is asked for this information by the judicial authorities.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
If the Swedish Whistleblowing Act applies, their identity must be kept confidential under the duty of confidentiality. If the Swedish Whistleblowing Act does not apply, their identity can to a large extent be kept confidential.
It can also be noted that a workplace investigation carried out in the public sector will often (eventually) become an official document, which means that the document can be requested by the public. There are, however, provisions on secrecy that may restrict the right to gain access to official documents. These provisions are found in the Public Access to Information and Secrecy Act (2009:400).
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Non-disclosure agreements, also known as confidentiality agreements, can be used to maintain the confidentiality of the investigation. In this agreement, the employee will be directed to maintain confidentiality concerning the investigation and matters that are the subject of the investigation, and not speak to anyone outside the investigation team about the investigation without authorisation.
Confidentiality agreements are legal documents. Employees should be informed that a breach of the confidentiality agreement could result in disciplinary action being taken against them, up to and including termination of their employment.
Finland
Finland
- at Roschier
- at Roschier
Yes, however, the need for an NDA is assessed always on a case-by-case basis.
France
France
- at Bredin Prat
- at Bredin Prat
Most of the time, the legal protection afforded by the legally prescribed confidentiality obligation that applies to whistleblowing is sufficient. This is all the more so given every person involved is bound by an obligation of discretion. However, there is no legal obstacle to the creation of an NDA between the employer and the people involved.
NDAs setting out a strict and reinforced obligation of confidentiality and discretion during the investigation should be signed by any external parties involved (eg, translation agency, IT expert) or when the internal investigation is outside the scope of whistleblowing regulations.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
NDAs can be used for some investigations carried out in the private sector. However, under the Swedish Whistleblowing Act, a contract is void to the extent it retracts or restricts a person’s rights under the Swedish Whistleblowing Act. An NDA that restricts the right to report irregularities to authorities or the media would, therefore, typically be void.
14. When does privilege attach to investigation materials?
14. When does privilege attach to investigation materials?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Investigation materials are not privileged and an employer may be required to disclose them in subsequent legal proceedings. If an employer is concerned about privilege attaching to an investigation, they should engage a legal practitioner to facilitate the investigation.
Employers who are concerned about privilege attaching to investigation materials should also consider the method of a lawyer’s engagement. The lawyer should be expressly engaged to investigate, report and to assist the employer by providing legal advice. Additional benefits can be achieved if the legal practitioner engages an external investigator to investigate the complaint and prepare the investigation report. Privilege will attach to the investigation materials because they are prepared for the lawyer to allow the lawyer to provide legal advice to the employer.
It is important that employers do not expressly or inadvertently waive privilege. For example, by disclosing the investigation report or substantial contents of the investigation report. It is a balance between providing information to the respondent and complainant about the outcome of the investigation and disclosing too much information.
Finland
Finland
- at Roschier
- at Roschier
The privilege of investigation materials concerns a rather limited amount of cases. In practice, materials may be considered privileged in connection with the litigation process under the Procedural Code (4/1734). For example, communications between a client and an attorney may attract protection against forcible public disclosure.
France
France
- at Bredin Prat
- at Bredin Prat
Privilege does not generally apply to internal investigation materials as the investigation does not constitute a relationship between a lawyer and their client, and even less so a judicial investigation. However, if a lawyer is appointed as an investigator, privilege may apply to materials exchanged between the lawyer and that client.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Attorney-client privilege will apply to all communication and investigative material between a client and its law firm. Attorney-client privilege is, however, not without limitations. Regarding investigations into alleged employee misconduct, a law firm may have to report suspected money laundering to the authorities and under certain circumstances disclose information to the financial police.
Written material covered by attorney-client privilege generally may not be seized.
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?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
The respondent should be given the opportunity to have a support person present during the investigation meeting and any subsequent conversations that concern the termination of their employment. Failure to allow the respondent to have a support person may result in any subsequent termination of employment being found to be an unfair dismissal. This is because under the Fair Work Act 2009 (Cth), when the FWC is considering whether a dismissal is an unfair dismissal, they must consider any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.
Employers should request that the respondent inform them 48 hours before any meeting of the identity of their support person. This will allow the employer to confirm the support person’s suitability. A support person can be a legal representative or trade union representative, but the role of a support person is limited to assisting the employee and they are not there to act as an advocate or representative.
Finland
Finland
- at Roschier
- at Roschier
The employee under investigation has a right to have a support person present (eg, a lawyer or an employee representative) during the hearings and a right to assistance in preparing written statements.
France
France
- at Bredin Prat
- at Bredin Prat
The employee under investigation has the right to be assisted by a lawyer during the interviews and, if the employee chooses to be so, the lawyer must also always be present. The employee may not, however, be accompanied by anyone other than a legal representative (ie, another employee cannot attend the interview).
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
The employee has no right to bring legal representation. However, the outcome of an investigation may lead to employment-related consequences, so it may be appropriate (depending on the situation) to offer the employee the opportunity to bring a union representative (if the employee is unionised) or a legal representative.
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?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
A trade union does not have any right to be informed of, or involved in, an investigation by an employer. However, an employee may request that their support person is a trade union member or trade union representative. This is appropriate and should be permitted.
Employers should review the terms of an employment contract, policy or industrial instrument as this may contain terms regarding trade union involvement. In particular, heavily-unionised workplaces may contain enterprise agreements which contain relevant clauses.
Finland
Finland
- at Roschier
- at Roschier
A works council or a trade union does not have a role in the investigation.
France
France
- at Bredin Prat
- at Bredin Prat
Neither the works council nor the trade unions have any right to be informed or involved in the investigation. It is the employer who is responsible for carrying out the investigation. However, when the investigation is triggered due to a works council issuing an alert relating in particular to a “serious and imminent danger”, one member of the works council must be involved in the investigation process.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
No, but if the employee under investigation is unionised it is appropriate to inform the union about the investigation. If the employer chooses to take action against the employee during, or after, the investigation, the trade union generally needs to be consulted before any final decisions are made.
If the Swedish Whistleblowing Act applies, the employer is not authorised to inform a works council or trade union about the investigation, as it may be in violation of the duty of confidentiality (see question 10).
17. What other support can employees involved in the investigation be given?
17. What other support can employees involved in the investigation be given?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Employers should be conscious that the investigation may have an impact on the complainant, respondent and witnesses. Employers will need to consider how to support their employees. The level of support provided will often depend on the size of the organisation and programmes already in place.
Many employers have an Employee Assistance Programme and employees should be reminded about this programme if further support or assistance is required. An employer’s HR team may also be able to assist if an employee has concerns about the progress of an investigation.
Finland
Finland
- at Roschier
- at Roschier
They can request assistance, for example, from an occupational health and safety representative, a shop steward or the occupational healthcare provider.
France
France
- at Bredin Prat
- at Bredin Prat
Apart from being informed of any facts and data concerning them being collected during the investigation, employees involved in the investigation do not have any specific rights. Some companies choose to use external firms specializing in psychosocial risk management, not only to conduct internal investigations, but also to provide additional psychological support for their employees, as part of the employer's safety obligation.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
The employer is responsible for the work environment and must ensure that employees are not at risk of mental (or physical) illness due to an investigation. If an employee, in connection with an investigation, requires support or if risk of ill health is otherwise anticipated, the employer is obliged to assess the situation and provide said employee with sufficient support (eg, counselling or work adjustments).
19. What if the employee under investigation raises a grievance during the investigation?
19. What if the employee under investigation raises a grievance during the investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
If a respondent raises a grievance during the investigation this should be dealt with under any employment contract, grievance policy or industrial instrument. This may involve investigating and responding accordingly. The content of the grievance should be carefully considered, but in many circumstances it is appropriate for the initial investigation to continue. Multiple investigations can be run simultaneously.
Finland
Finland
- at Roschier
- at Roschier
If the nature of the grievance relates to the employer's obligations to handle such matters in general, the grievance will be investigated either separately or as a part of the ongoing investigation.
France
France
- at Bredin Prat
- at Bredin Prat
The grievance may also have to be investigated (eg, moral/sexual harassment reported by an employee under investigation).
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
There are no formal rules or processes for handling grievances in Sweden. Depending on the nature of the grievance, such a complaint may also have to be investigated (unless the grievance is deemed to be trivial). This could, for example, be the case if the grievance concerns new or other work environment issues that the employer is obliged to investigate.
20. What if the employee under investigation goes off sick during the investigation?
20. What if the employee under investigation goes off sick during the investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
It is not uncommon for respondents to an investigation to take personal or carer’s leave (sick leave) claiming that they are suffering from stress or anxiety. If this occurs, employers need to act appropriately, but this does not necessarily involve stopping the investigation process.
Employers should:
- assess the medical evidence to ascertain the respondent’s condition and determine how long they are likely to be unwell;
- avoid exacerbating the condition;
- determine whether the employee is unfit to attend the investigation meeting;
- take into consideration the evidence of other witnesses;
- consider delaying the investigation for a short period; and
- consider conducting the interviews in other ways, for example, in writing.
While all efforts should be made to accommodate an employee who has taken personal or carer’s leave during an investigation, if the respondent does not participate in the investigation, the investigation report may be prepared based on the available evidence.
Finland
Finland
- at Roschier
- at Roschier
As a general rule, sick leave does not prevent an investigation from progressing. Depending on the nature of the sickness, the employee can attend hearings and take part in the procedure. If the sickness prevents the employee from participating, the employer can put the process on hold temporarily.
France
France
- at Bredin Prat
- at Bredin Prat
The investigation will likely be able to continue with the other employees and, as soon as the employee under investigation returns from sick leave, they will be able to be interviewed.
However, as disciplinary sanctions are time-barred after two months from the moment the misconduct was committed or from when the employer becomes aware of it, if the sick leave lasts for the whole of that period, the investigation must be conducted anyway. In this instance, the investigator can ask the employee to attend the interview despite being on sick leave or arrange for the interview to take place using other means (eg, conference call). As a last resort, a questionnaire can be sent to the employee, but the pros and cons must be assessed as this is a way of information gathering that carries a certain amount of risk, could be less reliable and is of less probative value.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
The employer is responsible for the employee’s work environment during the investigation. The employer must assess the situation and the impact on the employee’s health and may, depending on the situation, have to postpone certain investigative measures, such as interviewing the employee in question. The investigation may even have to be completed without the employee participating.
21. How do you handle a parallel criminal and/or regulatory investigation?
21. How do you handle a parallel criminal and/or regulatory investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
There are circumstances of misconduct in the workplace that can also constitute criminal conduct and be subject to a criminal or regulatory investigation. This can include physical or sexual assault, theft, fraud, illegal drug use or stalking.
An employer can proceed with an investigation to determine whether the respondent engaged in misconduct on the balance of probabilities. The employer can terminate an employee’s employment before the outcome of any criminal investigation. However, the employer must keep in mind that procedural fairness must be afforded to the employee, particularly in circumstances where an employee is awaiting the outcome of a court proceeding.
Alternatively, an employer may decide to suspend the employee pending the outcome of the criminal investigation. If a criminal act has been committed, then the employer may decide to terminate the employee’s employment.
Co-operation with the police and regulatory authorities is sensible and evidence can be compelled by the police or regulators by, for example, a subpoena, search warrant or an order for production.
Finland
Finland
- at Roschier
- at Roschier
Regardless of a possible criminal investigation, the employer must run its internal workplace investigation without unnecessary delay. A workplace investigation and a criminal investigation are two separate processes and can be ongoing simultaneously, so the criminal process does not require the workplace investigation to be stayed. Thus, parallel investigations are to be considered as two separate matters. The police may only obtain evidence or material from the company or employer if strict requirements for equipment searches are met after a request for investigation has been submitted to the police.
France
France
- at Bredin Prat
- at Bredin Prat
A criminal investigation always takes precedence over other investigations. However, this does not mean that the internal investigation has to stop. It can and should continue, and the report drawn up upon completion of the investigation could be used by the authorities in the criminal investigation. In some cases, especially when privilege does not apply, police or regulatory authorities may request that the employer share such evidence. However, even when privilege does apply, there is no certainty that the evidence would not have to be communicated to certain authorities.
Some administrative authorities often challenge the application of legal privilege or try to reduce its scope. For example, the French financial markets authority (AMF) regularly puts forward its view of legal privilege, according to which an email where a lawyer is only copied (and is not one of the main recipients) in from one of their clients is not confidential and can therefore be disclosed in proceedings. However, if the AMF investigators impose disclosure of privileged documents, this should result in the annulment of the investigation procedure. By way of exception, legal privilege cannot be invoked against certain other authorities, such as the URSSAF (authority in charge of collecting social security contributions) or the DGCCRF (directorate-general for competition, consumer protection and anti-fraud investigations). Where legal privilege is enforceable, the judge must first determine whether the documents constitute correspondence relating to defence rights and, second, must cancel the seizure of documents that they find to be covered by legal privilege due to the principle of professional secrecy of relations between a lawyer and their client and the rights of defence.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Handling a parallel investigation will have to be assessed on a case-by-case basis depending on the applicable rules. For instance, an investigation under the Swedish Discrimination Act is subject to certain timing requirements with which the employer must comply. In other cases, it may be more appropriate to hold off the workplace investigation while awaiting the outcome of the parallel investigation.
The police or regulator can, depending on the matter at hand, request an employer to share evidence. The police or the regulator may also, under certain circumstances, retain evidence in a search.
22. What must the employee under investigation be told about the outcome of an investigation?
22. What must the employee under investigation be told about the outcome of an investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Managing the outcome of the investigation is an important part of the process. The respondent must be informed of the outcome of the investigation as soon as possible after the investigation is completed and the decision-maker has decided how to proceed.
The investigator must decide whether the claims have been substantiated on the balance of probabilities and the decision-maker must decide what disciplinary action, if any, will be taken. Any disciplinary action should be proportionate to the seriousness of the misconduct. Disciplinary action could include a warning, counselling, monitoring of behaviour or termination of employment.
Ideally, the outcome of the investigation should be communicated to the respondent and complainant in writing, setting out the allegations that have been substantiated, unsubstantiated or whether there is insufficient evidence to make a finding.
Finland
Finland
- at Roschier
- at Roschier
The employer's conclusions from the investigation.
France
France
- at Bredin Prat
- at Bredin Prat
The employee under investigation, like the other employees interviewed and the whistleblower, must be informed that the investigation has been completed. However, there is no obligation to provide them with the report and, for reasons of confidentiality, it is very often best not to do so.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
This depends on the outcome of the investigation and the applicable rules.
If the outcome of the investigation leads to termination, the employer will have to disclose some information regarding the reason for termination. If the employee questions the termination, the employer may have to disclose more information in a subsequent dispute. If the outcome of the investigation leads to less invasive measures, such as a warning, there are less extensive requirements to provide information.
24. What next steps are available to the employer?
24. What next steps are available to the employer?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
Employers must take steps to deal with the findings of the investigation and implement any recommendations promptly. This may involve commencing disciplinary action.
The complainant and respondent need to be informed of the outcome of the investigation. All witnesses who participated in the investigation should also be thanked for their contribution and advised that the investigation has been completed. All participants in an investigation should be reminded of their ongoing obligations concerning confidentiality and victimisation.
If an employer decides that it may be appropriate to terminate a respondent’s employment, the employee must be provided with the opportunity to respond and to “show cause” as to why their employment should not be terminated.
The investigation report along with any other materials produced during the investigation should be kept in a separate confidential file.
Employers should also consider whether action should be taken at an organisational level to prevent future misconduct. In particular, employers are required to take a proactive approach to addressing systemic workplace cultural issues in relation to sex discrimination, sexual harassment and victimisation.
Finland
Finland
- at Roschier
- at Roschier
The employer decides whether misconduct has taken place or not. Depending on the case, the employer may recommend a workplace conciliation in which the parties try to find a solution that can be accepted by both sides. The employer may choose to give an oral reprimand or a written warning. If the legal conditions are met, the employer may also terminate the employment agreement.
France
France
- at Bredin Prat
- at Bredin Prat
The employer can decide to sanction the person who was under investigation or to close the case. The employer may also need to protect any victims, witnesses and whistleblowers. If, during the investigation, it is discovered that a supplier or other commercial partner is implicated, the relevant contract may be terminated. The employer can take legal action , file a complaint (if the company is a direct victim of a criminal offence) or report the offence to the public prosecutor’s office. The employer must archive the file or ensure its lawful preservation after a certain period.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
An investigation may result in employment law measures (eg, support, training, relocation, warning, termination or dismissal). An investigation may also be inconclusive and not result in any action.
25. Who can (or must) the investigation findings be disclosed to? Does that include regulators/police? Can the interview records be kept private, or are they at risk of disclosure?
25. Who can (or must) the investigation findings be disclosed to? Does that include regulators/police? Can the interview records be kept private, or are they at risk of disclosure?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
The outcome of the investigation must be disclosed to the complainant and respondent. If there is a concurrent police or regulatory investigation, they may request a copy of the investigation report. Employers should generally cooperate with regulatory authorities, but should be careful about disclosing the investigation report as this may be privileged and privacy obligations must be considered. Employers should consider only disclosing the investigation findings and interview records if compelled to do so by regulators or police.
Interview reports, the investigation report and communications about the investigation should be kept in a separate file. The file should be marked confidential and access to the file should be restricted.
If proceedings are commenced, the investigation materials may be subject to disclosure unless legal professional privilege can be asserted, see above.
Finland
Finland
- at Roschier
- at Roschier
In general, investigation materials, including findings, that includes personal data should only be processed by the personnel of the organisation who are responsible for internal investigations. However, it may in some situations be required by applicable legislation that findings are disclosed to competent authorities for the performance of their duties, such as conducting investigations in connection with malpractice and violations of the law.
France
France
- at Bredin Prat
- at Bredin Prat
The findings must be submitted to the employer or management, but there is no obligation to disclose them to anybody else. The only exception is if a judicial investigation has been opened. In this case, the entire report must be provided to the authorities if the judge requests this. Normally the investigators only take written notes and there is no audio or video recording, unless the employee consents. Whether or not to make a voluntary disclosure of wrongdoing is a tactical decision for companies. Disclosure may mitigate fines and penalties or even help the employer avoid liability entirely. However, the downsides of disclosure include increased costs, the possibility of a follow-on government investigation and exposure to penalties. Thus, most companies assess their options on a case-by-case basis to determine what steps would be in the best interests of the company.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Findings may have to be handed over to the police or the regulator – there is no separate legal protection for material in employer investigations related to authorities. If the investigation has been carried out by a law firm, see question 14 on attorney-client privilege.
26. How long should the outcome of the investigation remain on the employee’s record?
26. How long should the outcome of the investigation remain on the employee’s record?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
There are legal requirements related to the time you must keep certain employee records in Australia, such as pay slips and time sheets. However, there are no laws concerning disciplinary records.
Employers can rely on previous misconduct to justify an employee’s termination of employment where it can be shown it is part of a course of conduct. Accordingly, if complaints have been substantiated, and disciplinary action has been taken, these records should be maintained. However, if a significant period has elapsed since the misconduct, an employer should carefully consider whether it is appropriate to rely on this past behaviour to justify future disciplinary action for similar conduct.
Finland
Finland
- at Roschier
- at Roschier
Please see question 7. The outcome of the investigation involving personal data may be retained only for as long as is necessary considering the purposes of the processing. In general, the retention of investigation-related data may be necessary while the investigation is still ongoing and even then the requirements of data minimization and accuracy should be considered. The data concerning the outcome of an investigation should be registered to the employee's record merely to the extent necessary in light of the employment relationship or potential disciplinary measures. In this respect, the applicable retention time depends on labour law-related rights and limitations, considering eg, the applicable periods for filing a suit.
France
France
- at Bredin Prat
- at Bredin Prat
If the outcome of the internal investigation has led to the sanctioning of an employee, this sanction may no longer be invoked to support a new sanction after three years. Moreover, under the GDPR principles, the duration of retention must be proportional to the use of the data. Therefore, the data must be retained only for a period that is “strictly necessary and proportionate”. If the employer wants to keep information about the investigation in the longer term, it is possible to archive the employee’s record even though the employer will no longer be able to use it against the employee after three years.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Under the GDPR personal data may not, according to the general principle on storage limitation, be retained for longer than is necessary for the purposes for which the personal data are processed. The GDPR does not stipulate a generally applicable storage limitation period. Such a regulation is, on the other hand, included in the Swedish Whistleblowing Act. If the Swedish Whistleblowing Act applies, the outcome of the investigation and all personal data should be retained for as long as necessary, but not for longer than two years after the investigation has been closed.
27. What legal exposure could the employer face for errors during the investigation?
27. What legal exposure could the employer face for errors during the investigation?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
It is important for employers to conduct procedurally fair investigations that result in a fair outcome. Failure to do so may expose the employer to various claims by an employee. The most common type of claim following an investigation is an unfair dismissal claim. If a respondent’s employment is terminated because of an investigation, they may be eligible to bring an unfair dismissal claim in the FWC alleging their dismissal was harsh, unjust or unreasonable.
An employee may also bring a bullying, discrimination or general protections claim. These claims may be made even where the investigation does not result in the employee’s dismissal.
If an employer has departed from the procedures set out in their policies, or they have not followed the terms of an employee’s employment contract or another applicable industrial instrument then an employee may bring a claim for breach of contract.
Australia has also recently introduced the “Respect@Work” legislation which places a positive obligation on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. Accordingly, an employer who is not perceived to have taken a proactive and fair approach to these workplace issues faces significant legal exposure.
Failure to conduct an investigation properly (or a failure to conduct an investigation in circumstances where it is needed) can also cause significant reputational and financial risk.
Finland
Finland
- at Roschier
- at Roschier
There are no regulations regarding the actual investigation process. Therefore, the employer cannot be accused of procedural errors as such. However, once the matter has been adequately investigated, the employer must decide whether or not misconduct has taken place. If the employer considers that misconduct has taken place, the employer must take adequate measures for remedying the situation. Failure to adequately conduct the investigation could result in criminal sanctions being imposed on the employer as an organisation or the employer’s representative, or damages.
France
France
- at Bredin Prat
- at Bredin Prat
Within the context of an investigation following a whistleblower alert, any violation of the confidentiality obligation is punishable by two years’ imprisonment and a €30,000 fine.
If the employer fails to comply with its obligation to protect its employees’ safety, the employer will be liable for damages resulting from any failings during the investigation (eg, if sexual harassment is reported and no action is taken by the employer)
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Errors resulting in terminations can be unlawful and, if they lead to employees terminating their employment as a result of the employer’s missteps, could be seen as constructive dismissal. Constructive dismissal is generally equivalent to an unlawful dismissal. Unlawful terminations generally result in an obligation to pay financial and general damages to the affected employees.
Failure to fulfil the obligations under the Swedish Discrimination Act may lead to an obligation to pay financial and general damages.
If an employer does not fulfil its obligations according to work environment legislation, there is a risk that the Swedish Work Environment Authority will issue injunctions or prohibitions against the employer. If an employer omits to meet its work environment related obligations, and that in turn results in a work related accident, e.g. self-harm in connection with an internal investigation, it may also, in a worst case scenario, lead to criminal liability.
The Swedish Work Environment Authority is also responsible for monitoring compliance with the provisions of the Swedish Whistleblowing Act. The Swedish Work Environment Authority may, if necessary to ensure compliance with the Swedish Whistleblowing Act, order an operator to comply with the obligations and requirements of the Swedish Whistleblowing Act. Employers violating the Swedish Whistleblowing Act may also be liable to pay damages to the affected employees.
If personal data is processed in a way that violates the GDPR, the authorised supervisory authority may issue warnings or reprimands to the data controller, order the controller to comply with the GDPR, impose a ban on processing, or impose an administrative fine on the controller. Companies violating the GDPR may also be liable to pay damages to data subjects.