Workplace Investigations

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.   

While there are no prescribed minimum qualifications or criteria that need to be met for any person conducting a workplace investigation, the person handling employee grievances should be someone who:

• has been authorised and empowered to do so by the employer;
• is not in a position of actual or potential conflict; and
• is independent and impartial.

The grievance handler should be familiar with the organisation’s investigative procedure, have attended the relevant training to ensure full compliance with the same; and have a good understanding of the expectations and norms set out by the Tripartite Guidelines on Fair Employment Practices.

The examinations can be carried out internally by designated internal employees, by external specialists, or by a combination thereof. The addition of external advisors is particularly recommended if the allegations are against an employee of a high hierarchical level[1], if the allegations concerned are quite substantive and, in any case, where an increased degree of independence is sought.

During the investigation, unrelated matters can come to light, usually made by the complainant or a witness during the interview process. Unrelated matters may take the form of further complaints against the respondent (but on grounds that are outside the scope of the current investigation), or entirely different complaints.

An employer should first assess the nature of the new allegations. Entirely unrelated matters should be dealt with separately. However, if the matter relates to the respondent it may be appropriate to obtain consent from the respondent and complainant for the scope of the investigation to be widened. It is important to remember that all allegations must be put to the respondent and they must be given an opportunity to respond.

If unrelated matters that require further investigation are revealed as a result of the investigation, the employer should take the necessary steps to investigate these matters, where relevant, under the employer’s grievance reporting, investigation and disciplinary processes. This should be done separately and independently from the existing investigation. Please note that section 424 of the Criminal Procedure Code imposes a legal duty on any person who is aware that another has committed certain specified offences to "immediately" report the matter to the police, "in the absence of reasonable excuse" not to do so. Failure to comply with this requirement is punishable with imprisonment for up to six months, and/or a fine.

There are no regulations in this regard in the Swiss employment law framework. However, in criminal proceedings, the rules regarding accidental findings apply (eg, article 243, Swiss Criminal Procedure Code for searches and examinations or article 278, Swiss Criminal Procedure Code for surveillance of post and telecommunications). In principle, accidental findings are usable, with the caveat of general prohibitions on the use of evidence.