Workplace Investigations

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).

The existence and scope of any confidentiality obligations would generally depend on the specific terms of the employment contract, employee handbook or the employer’s internal policies and procedures in dealing with the investigations.

In the context of investigations into workplace harassment issues, the Tripartite Advisory on Managing Workplace Harassment issued by the MOM provides that the identities of the alleged harasser, affected persons and the informant should be protected unless the employer assesses that disclosure is necessary for safety reasons.

This may change with the enactment of the Workplace Fairness Legislation referred to in question 1. The Tripartite Committee on Workplace Fairness recommended, among other things, that employers should protect the confidentiality of the identity of persons who report workplace discrimination and harassment, where possible. As such, it is expected that the upcoming Workplace Fairness Legislation may impose certain confidentiality obligations on an employer during an investigation.

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.

A summary of the investigation’s findings should be disclosed to the employee who lodged the grievance and the employee under investigation.

If there are parallel criminal or regulatory investigations, the investigation findings should also be disclosed to the authorities.

Interview records or transcripts should be kept private unless disclosure is required by a court order or at the direction of the authorities.