Workplace Investigations

Austrian law does not impose an obligation on employers to conduct internal investigations and they do not have to follow a specific legal pattern when doing so. However, an obligation to conduct internal investigations may arise out of certain provisions of criminal, company or even labour law – in particular, an indirect obligation arising from an employer's duty of care, which requires them to act against employee mistreatment, such as bullying.

If such internal investigations are initiated, compliance with labour law and data protection regulations is mandatory. According to section 16 of the Austrian Civil Code (ABGB), the employer must also protect the personal rights of the individual. It is important to emphasise that a company's internal investigation is a private measure and differs from official investigations.

There is no specific legal regulation for internal investigations in Switzerland. The legal framework is derived from general rules such as the employer's duty of care, the employee's duty of loyalty and the employee's data protection rights. Depending on the context of the investigation, additional legal provisions may apply; for instance, additional provisions of the Swiss Federal Act on Data Protection or the Swiss Criminal Code.

If the report and the whistleblower fall within the scope of the Whistleblowing Directive, his or her identity must be protected. From a data protection perspective, the principles of the DSG must be observed to protect the legitimate confidentiality of the individuals concerned.

Furthermore, the employer should ensure that information is only disclosed to trustworthy persons to avoid pre-judgements.

Besides the employee's duty of performance (article 319, Swiss Code of Obligations), the employment relationship is defined by the employer's duty of care (article 328, Swiss Code of Obligations) and the employee's duty of loyalty (article 321a, Swiss Code of Obligations). Ancillary duties can be derived from the two duties, which are of importance for the confidentiality of an internal investigation.[1]

In principle, the employer must respect and protect the personality (including confidentiality and privacy) and integrity of the employee (article 328 paragraph 1, Swiss Code of Obligations) and take appropriate measures to protect the employee. Because of the danger of pre-judgment or damage to reputation as well as other adverse consequences, the employer must conduct an internal investigation discreetly and objectively. The limits of the duty of care are found in the legitimate self-interest of the employer.[2]

In return for the employer's duty of care, employees must comply with their duty of loyalty and safeguard the employer's legitimate interests. In connection with an internal investigation, employees must therefore keep the conduct of an investigation confidential. Additionally, employees must keep confidential and not disclose to any third party any facts that they have acquired in the course of the employment relationship, and which are neither obvious nor publicly accessible.[3]