Workplace Investigations

Contributing Editors


Workplace investigations are growing in number, size and complexity. Employers are under greater scrutiny as a result of developments like the #MeToo and Black Lives Matter movements, as well as the rise of ESG. The covid-19 pandemic has further increased the focus on workplace culture, whether in person or remote. 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 23 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?

01. What legislation, guidance and/or policies govern a workplace investigation?

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Finland

Finland

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Mainly, the Occupational Safety and Health Act (738/2002). In addition, the following also have relevance in connection to a workplace investigation: the Employment Contracts Act (55/2001), the Criminal Code (39/1889), the Act on Occupational Safety and Health Enforcement and Cooperation on Occupational Safety and Health at Workplaces (44/2006), the Act on Equality between Women and Men (609/1986) and the Non-discrimination Act (1325/2014). In addition, the employer's own policies must be taken into consideration while conducting a workplace investigation.

Last updated on 15/09/2022

02. How is a workplace investigation usually commenced?

02. How is a workplace investigation usually commenced?

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Finland

Finland

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When the employer becomes aware of possible misconduct, the employer must commence an investigation immediately, in practice within about two weeks. The information may come to the employer's knowledge via, for example, the employer's own observations, from the complainant or their colleagues or an employee representative.

Last updated on 15/09/2022

03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)? 

03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)? 

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Finland

Finland

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  • at Roschier

There is no legislation on temporary suspension in the event of a workplace investigation or similar. In some situations, the employer may relieve the employee from their working obligation with pay for a short period.

Last updated on 15/09/2022

04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?

04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?

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Finland

Finland

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The employer must conduct the investigation, but the actual work can be done either by the employer's personnel or by an external investigator, for example, a law firm. Either way, there are no formal criteria for the persons executing the investigation; however, impartiality is required from the person conducting the investigation

Last updated on 15/09/2022

07. What data protection or other regulations apply when gathering physical evidence?

07. What data protection or other regulations apply when gathering physical evidence?

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Finland

Finland

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Generally, the basic principles set out by the GDPR and the Finnish Data Protection Act apply to data processing in connection with investigations, including evidence gathering: there must be a legal basis for processing, personal data may only be processed and stored when and for as long as necessary considering the purposes of processing, etc.

Additionally, if physical evidence concerns the electronic communications (such as emails and online chats) of an employee, gathering evidence is subject to certain restrictions based on Finnish ePrivacy and employee privacy laws. As a general rule, an employee’s electronic communications accounts, including those provided by the employer for work purposes, may not be accessed and electronic communications may not be searched or reviewed by the employer. In practice, the employer may access such electronic correspondence only in limited situations stipulated in the Act on Protection of Privacy in Working Life (759/2004), or by obtaining case-specific consent from the employee, which is typically not possible in internal investigations, particularly concerning the employee suspected of wrongdoing.

However, monitoring data flow strictly between the employee and the employer's information systems (eg, the employee saving data to USB sticks, using printers) is allowed under Finnish legislation, provided that employee emails, chats, etc, are not accessed and monitored. If documentation is unrelated to electronic communications, it also may be reviewed by the employer. Laptops, paper archives and other similar company documentation considered "physical evidence" may be investigated while gathering evidence on the condition that any private documentation, communications, pictures or other content of an employee are not accessed.

Last updated on 15/09/2022

08. Can the employer search employees’ possessions or files as part of an investigation?

08. Can the employer search employees’ possessions or files as part of an investigation?

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Finland

Finland

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Only the police can search employees' possessions (assuming that the prerequisites outlined in the legislation are met).

Last updated on 15/09/2022

09. What additional considerations apply when the investigation involves whistleblowing?

09. What additional considerations apply when the investigation involves whistleblowing?

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Finland

Finland

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In respect of data protection, the processing of personal data in whistleblowing systems is considered by the Finnish Data Protection Ombudsman (DPO) as requiring a data protection impact assessment (DPIA).

Last updated on 15/09/2022

10. What confidentiality obligations apply during an investigation?

10. What confidentiality obligations apply during an investigation?

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Finland

Finland

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  • at Roschier

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).

Last updated on 15/09/2022

11. What information must the employee under investigation be given about the allegations against them?

11. What information must the employee under investigation be given about the allegations against them?

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Finland

Finland

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The process must be transparent and impartial, and therefore all the information that may influence the conclusions made during the investigation should be shared with the employee.

Last updated on 15/09/2022

12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?

12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?

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Finland

Finland

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See question 11, there is no protection of anonymity as the process must be transparent to the parties involved.

Last updated on 15/09/2022

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?

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Finland

Finland

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Yes, however, the need for an NDA is assessed always on a case-by-case basis.

Last updated on 15/09/2022

14. When does privilege attach to investigation materials?

14. When does privilege attach to investigation materials?

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Finland

Finland

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The privilege of investigation materials concerns a rather limited amount of cases. In practice, materials may be considered privileged in connection with the litigation process under the Procedural Code (4/1734). For example, communications between a client and an attorney may attract protection against forcible public disclosure.

Last updated on 15/09/2022

16. If there is a works council or trade union, does it have any right to be informed or involved in 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?

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Finland

Finland

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A works council or a trade union does not have a role in the investigation.

Last updated on 15/09/2022

17. What other support can employees involved in the investigation be given?

17. What other support can employees involved in the investigation be given?

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Finland

Finland

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They can request assistance, for example, from an occupational health and safety representative, a shop steward or the occupational healthcare provider.

Last updated on 15/09/2022

18. What if unrelated matters are revealed as a result of the investigation?

18. What if unrelated matters are revealed as a result of the investigation?

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Finland

Finland

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If they are related to the work or workplace, the employer will handle the emerging matters separately. In internal investigations, the employer is allowed to use any material legally available.

Last updated on 15/09/2022

19. What if the employee under investigation raises a grievance during the investigation?

19. What if the employee under investigation raises a grievance during the investigation?

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Finland

Finland

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If the nature of the grievance relates to the employer's obligations to handle such matters in general, the grievance will be investigated either separately or as a part of the ongoing investigation.

Last updated on 15/09/2022

20. What if the employee under investigation goes off sick during the investigation?

20. What if the employee under investigation goes off sick during the investigation?

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Finland

Finland

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As a general rule, sick leave does not prevent an investigation from progressing. Depending on the nature of the sickness, the employee can attend hearings and take part in the procedure. If the sickness prevents the employee from participating, the employer can put the process on hold temporarily.

Last updated on 15/09/2022

21. How do you handle a parallel criminal and/or regulatory investigation?

21. How do you handle a parallel criminal and/or regulatory investigation?

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Finland

Finland

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Regardless of a possible criminal investigation, the employer must run its internal workplace investigation without unnecessary delay. A workplace investigation and a criminal investigation are two separate processes and can be ongoing simultaneously, so the criminal process does not require the workplace investigation to be stayed. Thus, parallel investigations are to be considered as two separate matters. The police may only obtain evidence or material from the company or employer if strict requirements for equipment searches are met after a request for investigation has been submitted to the police.

Last updated on 15/09/2022

22. What must the employee under investigation be told about the outcome of an investigation?

22. What must the employee under investigation be told about the outcome of an investigation?

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Finland

Finland

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The employer's conclusions from the investigation.

Last updated on 15/09/2022

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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Finland

Finland

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The employee under investigation may only be informed of the conclusions.

Last updated on 15/09/2022

24. What next steps are available to the employer?

24. What next steps are available to the employer?

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Finland

Finland

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The employer decides whether misconduct has taken place or not. Depending on the case, the employer may recommend a workplace conciliation in which the parties try to find a solution that can be accepted by both sides. The employer may choose to give an oral reprimand or a written warning. If the legal conditions are met, the employer may also terminate the employment agreement.

Last updated on 15/09/2022

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?

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?

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Finland

Finland

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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.

Last updated on 15/09/2022

26. How long should the outcome of the investigation remain on the employee’s record?

26. How long should the outcome of the investigation remain on the employee’s record?

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Finland

Finland

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Please see question 7. The outcome of the investigation involving personal data may be retained only for as long as is necessary considering the purposes of the processing. In general, the retention of investigation-related data may be necessary while the investigation is still ongoing and even then the requirements of data minimization and accuracy should be considered. The data concerning the outcome of an investigation should be registered to the employee's record merely to the extent necessary in light of the employment relationship or potential disciplinary measures. In this respect, the applicable retention time depends on labour law-related rights and limitations, considering eg, the applicable periods for filing a suit.

Last updated on 15/09/2022