Workplace Investigations

All data processing must comply with the principles of article 5 GDPR (lawfulness, fairness, transparency, purpose limitation, data minimisation, accuracy, storage limitation and integrity). Personal data may only be collected and processed for specific, lawful purposes.

The admissibility of data processing depends on whether the suspicion relates to a criminal offence or another violation of the law. If the data processing is relevant to criminal law, article 10 GDPR or section 4(3) of the Austrian Data Protection Act (DSG) applies. If the investigations are exclusively to clarify violations under civil or labour law, such as an assertion of claims for damages or if they are general investigations to establish a criminal offence, the permissibility of data processing is based on article 6 or, for data covered by article 9 GDPR, on this provision.

The Swiss Federal Act on Data Protection applies to the gathering of evidence, in particular such collection must be lawful, transparent, reasonable and in good faith, and data security must be preserved.[1]

It can be derived from the duty to disclose and hand over benefits received and work produced (article 321b, Swiss Code of Obligations) as they belong to the employer.[2] The employer is, therefore, generally entitled to collect and process data connected with the end product of any work completely by an employee and associated with their business. However, it is prohibited by the Swiss Criminal Code to open a sealed document or consignment to gain knowledge of its contents without being authorised to do so (article 179 et seq, Swiss Criminal Code). Anyone who disseminates or makes use of information of which he or she has obtained knowledge by opening a sealed document or mailing not intended for him or her may become criminally liable (article 179 paragraph 1, Swiss Criminal Code).

It is advisable to state in internal regulations that the workplace might be searched as part of an internal investigation and in compliance with all applicable data protection rules if this is necessary as part of the investigation.

The employer should determine the intended recipients and format of the report in advance. In many cases, it may be advisable to publish only the results of the investigation to protect the privacy and reputation of the individuals concerned, as this may help to minimise any potential negative impact on them.

However, under certain circumstances or due to legal requirements, full disclosure of the investigation report may be required, especially if transparency and disclosure are necessary to maintain public or investor confidence.

In principle, there is no obligation to disclose the final investigation report. Disclosure obligations may arise based on data protection law vis-à-vis the persons concerned (eg, the accused). Likewise, there is no obligation to disclose other documents, such as the records of interviews. The employee should be fully informed of the final investigation report, if necessary, with certain redactions (see question 22). The right of the employee concerned to information is comprehensive (ie, all investigation files must be disclosed to him).[1] Regarding publication to other bodies outside of criminal proceedings, the employer is bound by its duty of care (article 328, Swiss Code of Obligations) and must protect the employee as far as is possible and reasonable.[2]