Workplace Investigations

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.

The actions of the employer may carry through to a subsequent state proceeding. First and foremost, any prohibitions on the use of evidence must be considered. Whereas in civil proceedings the interest in establishing the truth must merely prevail for exploitation (article 152 paragraph 2, Swiss Civil Procedure Code), in criminal proceedings, depending on the nature of the unlawful act, there is a risk that the evidence may not be used (see question 27 and article 140 et seq, Swiss Civil Procedure Code).

The investigator should prepare a written report setting out whether the allegations are substantiated, unsubstantiated or cannot be determined due to insufficient evidence. This report should be used for internal purposes only. Accordingly, the report should not be shared with the complainant, respondent or witnesses unless required by law, the employer’s policies or another industrial instrument. It is particularly important not to share the investigation report should the employer wish to maintain privilege in respect of the report.

In principle, there is no obligation to disclose the final investigation report. Disclosure obligations may arise based on data protection law vis-à-vis the persons concerned (eg, the accused). Likewise, there is no obligation to disclose other documents, such as the records of interviews. The employee should be fully informed of the final investigation report, if necessary, with certain redactions (see question 22). The right of the employee concerned to information is comprehensive (ie, all investigation files must be disclosed to him).[1] Regarding publication to other bodies outside of criminal proceedings, the employer is bound by its duty of care (article 328, Swiss Code of Obligations) and must protect the employee as far as is possible and reasonable.[2]