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?
02. How is a workplace investigation usually commenced?
03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)?
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
05. Can the employee under investigation bring legal action to stop the investigation?
06. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?
07. What data protection or other regulations apply when gathering physical evidence?
08. Can the employer search employees’ possessions or files as part of an investigation?
09. What additional considerations apply when the investigation involves whistleblowing?
10. What confidentiality obligations apply during an investigation?
11. What information must the employee under investigation be given about the allegations against them?
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
14. When does privilege attach to investigation materials?
15. Does the employee under investigation have a right to be accompanied or have legal representation during 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?
17. What other support can employees involved in the investigation be given?
18. What if unrelated matters are revealed as a result of the investigation?
19. What if the employee under investigation raises a grievance during the investigation?
20. What if the employee under investigation goes off sick during the investigation?
21. How do you handle a parallel criminal and/or regulatory investigation?
22. What must the employee under investigation be told about the outcome of an investigation?
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23. Should the investigation report be shared in full, or just the findings?
24. What next steps are available to the employer?
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?
26. How long should the outcome of the investigation remain on the employee’s record?
27. What legal exposure could the employer face for errors during the investigation?
23. Should the investigation report be shared in full, or just the findings?
23. Should the investigation report be shared in full, or just the findings?
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China
China
- at Jingtian & Gongcheng
- at Jingtian & Gongcheng
- at Jingtian & Gongcheng
- at Jingtian & Gongcheng
For the employee: As mentioned in our response to question 22, the relevant laws and regulations in the PRC do not impose any obligation on an employer to share investigation report (including the findings) with its employee, unless otherwise expressly provided in its internal rules and regulations that the employer may share with its employee any investigation report or findings that do not involve trade secrets or another person's privacy or personal information. Therefore, the employer has the discretion to decide whether and to what extent to share the investigation report based on its business management needs.
For the police/regulatory authorities: In general, an employer shall provide a complete report according to the law as required by the authority handling the case. It is recommended that the employer should conduct a detailed review of the investigation authority and the information contained in the evidence collection documents issued by the authority, and communicate with the authority to specify the scope of assistance and evidentiary materials to be provided. Although the employer cannot refuse to provide relevant evidentiary materials to the investigation authority on the grounds that such evidentiary materials involve trade secret or personal privacy, it still needs to carefully assess the relevance of the evidentiary materials to the facts of the case and timely communicate with the authority to confirm and narrow the scope of providing evidence as much as possible. If necessary, the employer can consult professional lawyers to provide professional opinions. In addition, we suggest that the employer may also try to require the investigation officer to sign a confidentiality letter, and file the investigation materials involving trade secret or personal privacy, the reasons thereof, etc., for the purpose of reducing legal risks faced by the employer.
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United Kingdom
United Kingdom
- at Slaughter and May
- at Slaughter and May
The answer to this depends on whether or not privilege attaches to the report, as well as whether criminal proceedings are contemplated – if so, there may be a danger of waiver of privilege, or witness evidence being contaminated if they have an opportunity to read each other’s evidence as part of the report. This could inhibit the fairness of any subsequent criminal trial.
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Contributors
Australia
People + Culture Strategies
Austria
GERLACH
Belgium
Van Olmen & Wynant
Brazil
CGM
China
Jingtian & Gongcheng
Finland
Roschier
France
Bredin Prat
Germany
Hengeler Mueller
Greece
Karatzas & Partners
Hong Kong
Slaughter and May
India
Trilegal
Ireland
Ogier
Italy
BonelliErede
Japan
Mori Hamada & Matsumoto
Netherlands
De Brauw Blackstone Westbroek
Nigeria
Bloomfield LP
Philippines
Villaraza & Angangco
Poland
WKB Lawyers
Portugal
Uría Menéndez - Proença de Carvalho
Singapore
Rajah & Tann Singapore
South Korea
Kim & Chang
Spain
Uría Menéndez
Sweden
Mannheimer Swartling
Switzerland
Bär & Karrer
Thailand
Chandler MHM
Turkey
Paksoy
United Kingdom
Slaughter and May
United States
Cravath, Swaine & Moore
Vietnam
Le & Tran Law Corporation
Contributors
China
Jingtian & Gongcheng
United Kingdom
Slaughter and May