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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02. How is a workplace investigation usually commenced?
02. How is a workplace investigation usually commenced?
Greece
Greece
- at Karatzas & Partners
- at Karatzas & Partners
- at Karatzas & Partners
- at Karatzas & Partners
Internal investigations can be initiated either upon a complaint or report by an employee, (or other persons providing services or seeking employment, etc) in the workplace or by the employer as part of their managerial right.
If from an employee, the complaint or report may fall within the scope of an internal disciplinary procedure, if any, or may concern an alleged workplace violence or harassment incident, or fall within the scope of L.4990/2022 on the protection of persons who report breaches of Union law.
Reports by whistleblowers are submitted to the manager with responsibility for receiving and monitoring reports, a person appointed for that purpose under L.4990/2022. Complaints for incidents and harassment in the workplace can also be submitted, according to L.4808/2022, to the person or internal body specifically assigned to receive such complaints. Both laws require the employer to define the persons competent for receiving and monitoring complaints or reports and notifying the employees stricto sensu and any other persons falling within the scope of the respective provisions.
India
India
- at Trilegal
- at Trilegal
- at Trilegal
As a precursor to the actual disciplinary process, investigations are usually initiated when the employer becomes aware of an allegation or complaint of misconduct, or observes any acts or omissions by an employee constituting workplace misconduct. The employer (or investigating committee – which could also be an outside agency like an auditor or law firm appointed by the employer) would generally commence the investigation by speaking with the complainant (or whistleblower) to gather as many details as possible (relevant facts, evidence, list of witnesses, etc) concerning the allegations, so that the next steps and approach can be determined upfront.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Internal investigations are usually initiated after reports about possible violations of the employer's code of conduct, applicable laws or regulations have been submitted by employees to their superiors, the human resources department or designated internal reporting systems such as hotlines (including whistleblowing hotlines).
For an internal investigation to be initiated, there must be a reasonable suspicion (grounds).[1] If no such grounds exist, the employer must ask the informant for further or more specific information. If no grounds for reasonable suspicion exists, the case must be closed. If grounds for reasonable suspicion exist, the appropriate investigative steps can be initiated by a formal investigation request from the company management.[2]
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?
Greece
Greece
- at Karatzas & Partners
- at Karatzas & Partners
- at Karatzas & Partners
- at Karatzas & Partners
NDAs are an option, especially to outline in detail the obligations of the persons conducting the investigation, which is also provided for in law. On the other hand, NDAs will not prevent persons involved from providing information to the competent authorities in the context of criminal or other similar procedures, where they must do so by law. Moreover, they may not protect confidentiality if persons who report breaches of Union law decide to make an external or public report, according to the provisions of L. 4990/2022.
India
India
- at Trilegal
- at Trilegal
- at Trilegal
Yes. While it is common for employees to be bound by general confidentiality obligations at the beginning of employment, it is advisable to reiterate such confidentiality obligations through NDAs during an investigation.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In addition to the above-mentioned statutory confidentiality obligations, separate non-disclosure agreements can be signed. In an internal investigation, the employee should be expressly instructed to maintain confidentiality.