Workplace Investigations

There is no codified law in India on conducting workplace investigations, so they largely depend on the internal policies of the employer. Certain requirements and best practice measures have evolved through judicial precedent, and these are codified through internal policies.

For claims involving sexual harassment, however, investigations can only be undertaken by the Internal Committee (IC), which an employer needs to constitute under the Prevention of Sexual Harassment of Women and Workplace (Prevention, Prohibition and Redressal) Act 2013 (SH Act).  

The general principle laid down by the courts is that any action against an employee for misconduct should be taken after conducting a disciplinary inquiry as per the principles of natural justice (PNJ). Whether or not a disciplinary inquiry can be done away with in any circumstances is a very fact-specific assessment and depends on various factors, including but not limited to the seniority and location of employment of the employee, and the nature and circumstances of the alleged misconduct.

The PNJ broadly require:

• that the accused employee should be issued with a written charge sheet or notice setting out the allegations against him or her along with a reasonable opportunity to respond;
• appointment of an independent inquiry officer to assess whether the allegations are proven or not; and
• that action must be taken based on the outcome of the inquiry, any punishment ordered should be proportionate to the gravity of the misconduct, and also take into account the service history (eg, prior warnings) of the individual.

The charge sheet or notice issued to the employee has to set out the evidence used by the employer to support the allegations in sufficient detail. Therefore, gathering necessary information and evidence is usually a critical precursor for any disciplinary process that an employer may eventually initiate against an employee.

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.

In the UK, the primary employment legislation of relevance to a workplace investigation includes the Employment Rights Act 1996 (ERA 1996), the Equality Act 2010 (EA 2010), and the Employment Relations Act 1999 (ERA 1999).

Other legislation includes the retained EU law version of the General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 (DPA 2018), the Investigatory Powers Act 2016 (IPA 2016) and the Investigatory Powers (Interception by Businesses etc for Monitoring and Record-keeping Purposes) Regulations 2018 (IP Regs 2018), and the Humans Rights Act 1998 (HRA 1998).

In terms of guidance, the Advisory, Conciliation and Arbitration Service (ACAS) have produced a Code of Practice on Disciplinary and Grievance Procedures (the ACAS Code) as well as a Guide to conducting workplace investigations. The Information Commissioner’s Office (ICO) have their Employment Practices Code,  and other pieces of guidance on the data protection aspects of investigations (see question 7).

Most employers will have internal policies governing how workplace investigations should be conducted. The level of detail may vary considerably; public sector and regulated employers may be more prescriptive in their policies, which may even have contractual force. There may also be provisions of the employment contract that are relevant (particularly as regards suspension – see question 3).

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.

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]

The trigger could come from several sources, such as a grievance from a current or former employee, a complaint from external sources, a whistleblowing disclosure, or as the result of internal governance measures.

In each case, the employer will need to decide if an investigation is warranted. It may be required by internal policies or regulatory requirements in some circumstances. Consideration must be given to whether an investigation is feasible; for example, is the evidence still in existence and accessible? Are key witnesses still employed or contactable?

If the employer concludes that an investigation is warranted, it should start without unreasonable delay. The first step would usually be to set terms of reference, which outline the purpose and remit of the investigation. These should be closely drafted and continually referred to, to avoid the investigation’s scope expanding when new points arise (as they almost always will). An investigator will also need to be appointed (see question 4).

Yes, an employee can be suspended or placed on administrative leave during an investigation if the circumstances warrant it. It is recommended to include the right to suspend in employee-facing policies. The employee should be informed about the suspension in writing, by issuing a suspension letter. In practice, a suspension is used when the charges against the employee are serious or if the employee’s presence at the workplace is likely to prejudice the investigation in any manner (eg, where there are concerns that evidence may be tampered with or witnesses pressurised). The requirement to suspend the employee should be assessed on a case-by-case basis and should not be exercised in every instance. If an employee is suspended, the investigation and inquiry should be completed as quickly as possible.

Further, concerning payment during the period of suspension, the law varies depending on the state and the category of employee. Generally, Indian law requires that individuals who are “workmen” be paid a subsistence allowance during the period of suspension, usually at the rate of 50% of their regular wages during the first 90 days of the suspension, and at varying rates thereafter. The exact rates at which subsistence allowance is paid will vary from state to state. In our experience, many companies choose to suspend employees with full salary even if there is an applicable subsistence allowance statute. This helps take some pressure off of the timeline within which the investigation and subsequent disciplinary inquiry can be completed.

It is possible to suspend an employee during a workplace investigation.[1] While there are no limits on duration, the employee will remain entitled to full pay during this time.

In the UK, suspension is not seen as a neutral act, so should not be a default approach at the start of an investigation. It may be appropriate if, for example, there is a risk to the health and safety of the employee in question (or any other employee), a risk that their continued presence in the business could prejudice the investigation, or risk of continued wrongdoing.

The employer should always check the individual’s employment contract to see if it contains the power to suspend. Suspension should generally always be with pay to avoid any breach of contract. It should also be regularly reviewed and kept to a minimum duration.

Employers should not suspend employees under investigation as a knee-jerk reaction to bare allegations. There must be at least some evidence to support the need for suspension (which may require a preliminary investigation before deciding to suspend). Alternatives to suspension should always be considered, such as a temporary transfer to a different area of work, if the employee agrees or it is otherwise permitted by their contract.

If authorities such as regulators or prosecutorial agencies are involved in the investigation, they may have an opinion about an employee’s suspension, particularly if they wish to conduct interviews. Consider whether or not to involve the authorities in the suspension discussions at an early stage.

ACAS have produced a guide to suspension during investigations (last updated Sept 2022) which gives further guidance on these issues.

Complaints pertaining to sexual harassment can only be investigated by the IC constituted under the SH Act.

For other kinds of misconduct, employers usually constitute a fact-finding investigation team with members who are independent and unbiased. The fact-finding team can be appointed internally, or the employer could also engage an external agency, depending upon the gravity and sensitivity of the matter, the nature of the issues being investigated or a desire to try and maintain legal privilege regarding the findings of the investigation.

The examinations can be carried out internally by designated internal employees, by external specialists, or by a combination thereof. The addition of external advisors is particularly recommended if the allegations are against an employee of a high hierarchical level[1], if the allegations concerned are quite substantive and, in any case, where an increased degree of independence is sought.

The investigator would typically be a line manager or HR representative. Complex cases, particularly if criminality is suspected, or cases where a senior employee is accused of misconduct, may require the investigator to be someone more senior within the organisation, or someone from the in-house legal team. Employers should bear in mind the need for someone more senior than the investigator to act as a disciplinary decisionmaker, if disciplinary action is found to be warranted.

Check the organisation’s policies and procedures, which may stipulate who can act as an investigator.

The investigator should be someone without any personal involvement in the matters under investigation, or any conflict of interest, but with sufficient knowledge of the organisation and where possible with both training and experience in conducting investigations.

The business should consider how any prospective investigator may appear if they are called as a witness in court, or to give evidence before any governmental committee or regulatory panel. They should also consider whether the employee accused of wrongdoing should have any say in the choice of investigator; this would not typically occur, but having the employee’s buy-in can increase the chances of a successful outcome to the investigation.

It is becoming increasingly common for businesses to use an external consultant or lawyer to conduct workplace investigations. This may be beneficial where it is not operationally viable within the employer organisation to have a different person conducting the investigation and the disciplinary hearing, or if the investigation is particularly sensitive or complex, or relates to a very senior employee. If an external investigator is appointed, the employer remains responsible for that investigation.

An employee has very limited ability to bring legal action to stop the investigation, as no disciplinary measure is taken against an individual during the investigation stage. The risk of claims or disputes generally arises after the employer has taken disciplinary measures against the individual.

An employee could, however, bring claims in some circumstances – for example, if the individual has been suspended without pay, or if the individual’s assets have been seized as part of the investigation without following due process. Therefore, it is critical that robust internal guidelines are framed that lay out the framework to follow in investigations to mitigate the risk of legal claims or disputes.  

The accused could theoretically request a court to stop the investigation, for instance, by arguing that there is no reason for the investigation and that the investigation infringes the employee's personality rights. However, if the employer can prove that there were grounds for reasonable suspicion and is conducting the investigation properly, it is unlikely that such a request would be successful.

Not usually, unless the investigation is being conducted in breach of a contractual policy (as sometimes happens in the NHS, for example), or if the investigation is not adjourned pending the outcome of criminal proceedings, and the employee can show that failure to do so is a breach of either an express term or the implied term of trust and confidence. The latter would be rare, but possible if the employee can demonstrate a real danger of a miscarriage of justice (see question 21).

Yes, in matters pertaining to sexual harassment, the SH Act expressly stipulates that the IC holds the powers of a civil court to summon any person to be examined as a witness. In misconduct cases, the investigating authority can ask employees to appear and testify before it as witnesses and internal policies should have provisions for this. As a result, employees are duty-bound to fairly and honestly participate in any investigative or disciplinary proceedings relating to the workplace, including offering truthful evidence and testimony on matters they may have observed or experienced as an employee of the organisation. While employees don't have any express statutory protections when acting as witnesses, any such policy should be balanced and include necessary safeguards, such as assuring employees that any retaliation against them will not be tolerated and that the details of their participation will only be shared on a need-to-know basis.  

Due to the employee's duty of loyalty towards the employer and the employer's right to give instructions to its employees, employees generally must take part in an ongoing investigation and comply with any summons for questioning if the employer demands this (article 321d, Swiss Code of Obligations). If the employees refuse to participate, they generally are in breach of their statutory duties, which may lead to measures such as a termination of employment.

The question of whether employees may refuse to testify if they would have to incriminate themselves is disputed in legal doctrine.[1] However, according to legal doctrine, a right to refuse to testify exists if criminal conduct regarding the questioned employee or a relative (article 168 et seq, Swiss Criminal Procedure Code) is involved, and it cannot be ruled out that the investigation documentation may later end up with the prosecuting authorities (ie, where employees have a right to refuse to testify in criminal proceedings, they cannot be forced to incriminate themselves by answering questions in an internal investigation).[2]

Employees may be reluctant to be interviewed or act as witnesses as part of an investigation, perhaps due to fear of reprisals. The investigator should discuss any concerns with the employee and attempt to alleviate any fears.

In general terms, an employer should not compel any employee to provide a witness statement. There may be circumstances in which this could be seen as a reasonable management instruction (and any refusal to comply treated as a disciplinary matter), but these will be rare. Evidence that is compelled is unlikely to be particularly useful to the investigator.

It may be possible to establish an express or implied obligation for senior managers to report on another employee's misconduct – as a feature of either their employment contractual duties, their fiduciary duties or their implied duty of fidelity. However, it is unlikely, in the absence of an express obligation, that a junior employee would be compelled to give evidence against a colleague.

Employees who act as witnesses benefit from their usual employment protections, and must be treated as per their contractual and statutory rights, as well as any policy governing the investigation. If the investigation involves allegations which could involve discrimination, the EA 2010 extends protection from victimisation to “giving evidence or information in connection with proceedings under this Act”. Witnesses should therefore not be subject to any detrimental treatment because they have acted as a witness in this type of investigation. Witnesses may also be entitled to protection as whistleblowers if their evidence amounts to a protected disclosure (see question 9).

In India, the collection, disclosure, transfer and storage of personal data is regulated by the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (SPD Rules). Accordingly, if during an investigation any sensitive personal information (such as information relating to passwords; financial information such as a bank account, credit or debit card or other payment instrument details; a physical, physiological or mental health condition; sexual orientation; medical history; and biometric information) is collected, then the requirements under the SPD Rules will need to be complied with. This would include obtaining an individual’s “informed consent” before collecting any sensitive personal data if such information is intended to be collected or stored in an electronic format.

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.

Most forms of workplace surveillance involve the processing of personal data that is regulated by the UK GDPR and DPA 2018. The UK GDPR requires that personal data must be processed lawfully, fairly and in a transparent manner; it also must be adequate, relevant and limited to what is necessary concerning the purposes for which it is processed.

Employers should ensure that they have undertaken a data protection impact assessment (DPIA) to document the lawful basis for processing data, and informed employees that their files may be searched before proceeding. They should also ideally have a clear policy on the use of electronic communications systems, detailing when, how and for what purpose they may be monitored by the employer. In Q3 2023 the ICO produced new guidance on monitoring workers (https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/employment/monitoring-workers/) and on email and security (https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/security/email-and-security/) which employers should bear in mind during investigations. Employers should also be prepared to make the data collected through employee monitoring available to employees, should the employee submit a data subject access request under the DPA 2018.

The IPA 2016 makes it unlawful in certain circumstances to intercept a communication (such as one on an employer’s telephone or computer network) in the course of its transmission in the UK. The IPA Regs 2018 set out the circumstances where, in a business context, such interception will be lawful. These include monitoring or recording communications without consent to: establish the existence of facts; ascertain compliance with the regulatory or self-regulatory practices or procedures relevant to the business; ascertain or demonstrate standards which are or ought to be achieved by persons using the system; and prevent or detect crime.

Covert surveillance can lead to a breach of an employee's right to privacy under the HRA 1998. The employer will need to consider if covert surveillance is proportionate, which will depend on the facts of each case. Employers should be careful not to use the investigation as an excuse to undertake a "fishing expedition", and should avoid gathering material that is obviously personal, such as private messages and diary entries (see question 8).

Yes, an employer can search its employees’ official possessions and files as part of an investigation. It may be difficult, however, to seize personal assets or possessions of an employee (such as the individual’s mobile phone or personal laptop).

Employers should expressly create policies that address key issues associated with employee surveillance, forensic searches and investigations, such as:

• whether or not the official assets and infrastructure of the company can be used for personal purposes by employees;
• the organisation's right to monitor, surveil or search any authorised or unauthorised use of its corporate assets; and
• that the employee should not have any expectation of privacy when using the companies’ resources, etc.

Any forensic review of digital data must be carried out with due regard to Indian rules of evidence to avoid situations where such evidence becomes unreliable in a future legal claim or dispute.

The basic rule is that the employer may not search private data during internal investigations.

If there is a strong suspicion of criminal conduct on the part of the employee and a sufficiently strong justification exists, a search of private data may be justified.[1] The factual connection with the employment relationship is given, for example, in the case of a criminal act committed during working hours or using workplace infrastructure.[2]

It may sometimes be difficult to draw a clear distinction between the property of the employer and employees’ personal property, both physical and electronic, particularly where employees are increasingly working from home. Employers should ideally have a clear policy to delineate what is the employer’s property.

Employees typically have a reasonable expectation of privacy at work, although how far this extends will depend on the circumstances of each case and the employer’s policies.

When it comes to employees’ personal possessions, a search should only be conducted in exceptional circumstances where there is a clear, legitimate justification. The employer should always consider whether it is possible to establish the relevant facts through the collection of other evidence. Even if the employee’s contract specifies that it is permitted, employers would usually require explicit employee consent for the search to be lawful. The employee should be invited to be present during the search; if this is not feasible, another independent third party (such as a manager) should be present.  

If the employee refuses to consent to a search of their personal possessions, their refusal should not be used to assume guilt; the investigator should explore why the employee has refused and seek to resolve their concerns if possible.

If the employer believes that a criminal offence has been committed it should consider involving the police, since they have wider powers to search individuals and their possessions. 

Indian labour legislation does not stipulate any additional considerations or requirements concerning whistleblower complaints in private organisations and these are only available if there are complaints against public servants. Further, under the Companies Act, 2013, certain companies are required to establish a “vigil mechanism” for directors and employees to report genuine concerns regarding the affairs of the company. The vigil mechanism should provide adequate safeguards against the victimisation of persons using it.

If an employee complains to his or her superiors about grievances or misconduct in the workplace and is subsequently dismissed, this may constitute an unlawful termination (article 336, Swiss Code of Obligations). However, the prerequisite for this is that the employee behaves in good faith, which is not the case if he or she is (partly) responsible for the grievance.

The employer should first identify which individuals may have protection as whistleblowers. This could be a current or former employee who raises the initial complaint, a co-worker who gives evidence as part of the investigation, or the accused employee.

In each case, consider whether a “protected disclosure” has been made (under Part IVA ERA 1996). This requires analysis of the subject matter of the disclosure, how it is made, and a reasonable belief that it is made in the public interest.

Employers must then ensure there is no detrimental treatment or dismissal of any worker on the grounds of their protected disclosure. Although the causation test for these purposes is not straightforward, as a general rule if the protected disclosure has a “material influence” on the decision to discipline or dismiss, there may be liability. Individual managers may be personally liable alongside the employer. Compensation for whistleblowing cases is uncapped, meaning businesses and individuals can face significant financial and reputational exposure.

What this means in practical terms is that the employer should promote a “speak-up” culture and, where protected disclosures are made, ensure they are handled by a team who are properly trained in how to do so.

Indian labour statutes do not contain any specific confidentiality obligations concerning investigations. However, in practice, the records of investigative or disciplinary proceedings should be kept confidential and shared only on a need-to-know basis to ensure that the parties do not suffer prejudice. The internal policies should also include provisions on confidentiality.

The SH Act, however, provides that certain information must not be published or made known to the public, press and media such as:

• the contents of the SH complaint;
• the identity and addresses of the complainant, accused and witnesses;
• any information on the conciliation and inquiry process;
• the recommendations of the IC; and
• action to be taken by the employer.

The SH Act permits the dissemination of information regarding remedies extended to any victim without disclosing the name, address or identity of the victim or witnesses. The SH Act also outlines punishments for violating confidentiality obligations.

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]

Workplace investigations should usually be conducted on a confidential basis, so that only those involved in the investigation are aware of its existence and subject matter. The need to maintain confidentiality about both the fact of the investigation, and any content discussed with an investigator, should be emphasised to all those involved. It may also be necessary to explain that a breach of confidentiality could be viewed as a disciplinary matter. Appropriate exceptions must, however, be made to allow employees to speak to any relevant employee or trade union representative, legal adviser and potentially the police or other regulators. Confidentiality provisions cannot override the rights of workers to make protected disclosures (see question 9).

In some situations, such as those involving a wide-ranging investigation into the organisation’s working practices and culture, it may be more appropriate to investigate a more “open” basis, and inform employees and other stakeholders.

As mentioned earlier, workplace investigations are normally a precursor to the actual disciplinary process against an employee. If the individual is being suspended during the investigation, the employer is only expected to inform the individual that they are being suspended on account of an ongoing investigation along with the broad nature of allegations or concerns, and does not need to disclose specific details about the allegations until the appropriate time. Further details may be provided at the investigation stage itself when the employee may be interviewed, or at the subsequent disciplinary inquiry.

Where a disciplinary process is necessary and initiated (after the investigation), the employee will have to be given a charge sheet or notice setting out the allegations against the individual in detail and be provided with an opportunity to submit an explanation. 

In sexual harassment investigations, the SH Act mandatorily requires the IC to submit a copy of the complaint to the accused. Further, the accused should be informed of the requirement to file his or her reply to the complaint along with a list of supporting documents, evidence, names and addresses of witnesses, etc, and the timelines for submitting his response in defence.

As a result of the employer's duty of care (article 328, Swiss Code of Obligations), employees under investigation have certain procedural rights. These include, in principle, the right of the accused to be heard. In this context, the accused has the right to be informed at the beginning of the questioning about the subject of the investigation and at least the main allegations and they must be allowed to share their view and provide exculpatory evidence.[1] The employer, on the other hand, is not obliged to provide the employee with existing evidence, documents, etc, before the start of the questioning.[2]

Covert investigations in which employees are involved in informal or even private conversations to induce them to provide statements are not compatible with the data-processing principles of good faith and the requirement of recognisability, according to article 4 of the Swiss Federal Act on Data Protection.[3]

Also, rights to information arise from the Swiss Federal Act on Data Protection. In principle, the right to information (article 8, Swiss Federal Act on Data Protection) is linked to a corresponding request for information by the concerned person and the existence of data collection within the meaning of article 3 (lit. g), Swiss Federal Act on Data Protection. Insofar as the documents from the internal investigation recognisably relate to a specific person, there is in principle a right to information concerning these documents. Subject to certain conditions, the right to information may be denied, restricted or postponed by law (article 9 paragraph 1, Swiss Federal Act on Data Protection). For example, such documents and reports may also affect the confidentiality and protection interests of third parties, such as other employees. Based on the employer's duty of care (article 328, Swiss Code of Obligations), the employer is required to protect them by taking appropriate measures (eg, by making appropriate redactions before handing out copies of the respective documents (article 9 paragraph 1 (lit. b), Swiss Federal Act on Data Protection)).[4] Furthermore, the employer may refuse, restrict or defer the provision of information where the company’s interests override the employee’s, and not disclose personal data to third parties (article 9 paragraph 4, Swiss Federal Act on Data Protection). The right to information is also not subject to the statute of limitations, and individuals may waive their right to information in advance (article 8 paragraph 6, Swiss Federal Act on Data Protection). If there are corresponding requests, the employer must generally grant access, or provide a substantiated decision on the restriction of the right of access, within 30 days (article 8 paragraph 5, Swiss Federal Act on Data Protection and article 1 paragraph 4, Ordinance to the Federal Act on Data Protection).

The employee must be able to effectively challenge the allegations against them. They should be given the terms of reference for the investigation, and any relevant documentary evidence, including copies of witness statements.

The response and approach to this would be very fact-specific.

Under the SH Act, an individual cannot file an anonymous complaint and, therefore, the name of the complainant cannot be kept confidential. The same would go for details of witnesses, if any.

For other types of misconduct, the name of the complainant could potentially be kept confidential, depending on the nature of the allegations. For example, if an individual observes another colleague or employee committing inappropriate conduct (such as fraud or bribery) and reports this, the name of the complainant may not necessarily have to be disclosed to the accused employee, especially where the company is independently able to gather evidence substantiating the allegations. The names of witnesses generally cannot be kept confidential, since doing so may prove prejudicial to the accused employee. Further, as part of the disciplinary inquiry process, the accused has the right to cross-examine witnesses.

Notwithstanding the above, the approach to this issue should be assessed on a case-by-case basis by looking at the underlying sensitivities and risks involved. Courts have, in limited circumstances, permitted non-disclosure of the names of witnesses or complainants.

As mentioned under Question 10, the employer’s duty of care (article 328, Swiss Code of Obligations) also entails the employer’s duty to respect and protect the personality (including confidentiality and privacy) and integrity of employees (article 328 paragraph 1, Swiss Code of Obligations) and to take appropriate measures to protect them.

However, in combination with the right to be heard and the right to be informed regarding an investigation, the accused also has the right that incriminating evidence is presented to them throughout the investigation and that they can comment on it. For instance, this right includes disclosure of the persons accusing them and their concrete statements. Anonymisation or redaction of such statements is permissible if the interests of the persons incriminating the accused or the interests of the employer override the accused’ interests to be presented with the relevant documents or statements (see question 11; see also article 9 paragraphs 1 and 4, Swiss Federal Act on Data Protection). However, a careful assessment of interests is required, and these must be limited to what is necessary. In principle, a person accusing another person must take responsibility for their information and accept criticism from the person implicated by the information provided.[1]

Only in exceptional circumstances, such as where there is a genuine risk of retaliation. Anonymising a complaint puts the employee under investigation at a significant disadvantage, as they may be unable to properly challenge the evidence against them. It can also impair the effectiveness of the investigation. Employers should, therefore, not provide any guarantees of confidentiality to complainants or to employees who are to act as witnesses. That said, employers should think carefully about any necessary disclosure of names or facts. This can be particularly relevant where the witness is subordinate to the employee being investigated.

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.

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.

Only to a limited extent. As a matter of law, NDAs cannot prevent a worker from making a protected disclosure, or reporting a crime to the police. As a matter of the regulatory obligations of solicitors, NDAs should not be used in other ways, including as a means of influencing the content of disclosures, or by using warranties, indemnities and clawback clauses in a way that is designed to, or has the effect of, improperly preventing or inhibiting permitted reporting or disclosures (see the SRA’s warning notice on the use of NDAs).

Professional advice given by an "advocate" to a client is protected as “privileged communication” and is not admissible as evidence in a court of law. Such privilege may not attach to advice or communications involving in-house lawyers as they are not licensed advocates (since they are expected to surrender their bar licences when they take on in-house roles). This is a grey area as there are conflicting judicial precedents on this. Hence, communications, documents or information gathered during an investigation conducted entirely internally may not be legally privileged and may be discoverable in a dispute. That said, companies generally mark sensitive communications with in-house attorneys as privileged and confidential in an attempt to protect the same.

For the above reasons, investigations conducted by external advocates have better chances of retaining legal privilege. However, the following will not be treated as privileged information:

• any correspondence about the commission of a crime or fraud by the client; and
• the observations of an attorney that would suggest that a crime or fraud will be committed by the client.

As outlined above, all employees generally have the right to know whether and what personal data is being or has been processed about them (article 8 paragraph 1, Swiss Federal Act on Data Protection; article 328b, Swiss Code of Obligations).

The employer may refuse, restrict or postpone the disclosure or inspection of internal investigation documents if a legal statute so provides, if such action is necessary because of overriding third-party interests (article 9 paragraph 1, Swiss Federal Act on Data Protection) or if the request for information is manifestly unfounded or malicious. Furthermore, a restriction is possible if overriding the self-interests of the responsible company requires such a measure and it also does not disclose the personal data to third parties. The employer or responsible party must justify its decision (article 9 paragraph 5, Swiss Federal Act on Data Protection).[1]

The scope of the disclosure of information must, therefore, be determined by carefully weighing the interests of all parties involved in the internal investigation.

There are two limited types of privilege which may be relevant to investigations:

• Legal Advice Privilege (LAP), which protects communications between lawyers and their clients provided they are confidential and made for the dominant purpose of obtaining or giving legal advice; and
• Litigation Privilege (LP), which can extend to communications between a lawyer and client or third parties, but only where the dominant purpose of the communication is to prepare for or conduct existing or contemplated litigation.

If the relevant tests for privilege are met and apply to materials generated in the course of the investigation, the employer retains greater control over their subsequent disclosure to third parties. The materials would, for example, be protected against disclosure in any subject access request under the DPA 2018.

That said, privilege can be difficult to maintain in investigations, particularly where litigation is not active or in contemplation. Interview notes and witness statements may not attract privilege, particularly if these were conducted with employees who do not fall within the narrow definition of “the client” for LAP purposes (which is limited to employees who are capable of seeking and receiving advice on behalf of the employer).

If privilege applies to investigation materials, the investigator should keep tight control on what documents are created and how they are circulated, to avoid inadvertent disclosure and potential waiver of privilege.

Bear in mind that even if privilege applies to certain investigation materials, there may be a need to create disclosable documentation at a later stage, particularly if there is a decision to instigate disciplinary action.

In SH cases, parties are not allowed to bring in a legal practitioner to represent them in the IC's proceedings.

In investigations related to other forms of misconduct, there isn't a statutory right to be accompanied by another employee, colleague or lawyer during a fact-finding investigation. In a disciplinary inquiry, if the employee seeks permission to be represented by another person, such as an advocate, co-worker or a union leader, the inquiry officer must decide whether to allow the request based on the specific facts and circumstances as well as any company policies on the subject. If the management has appointed a lawyer to present the company's case in disciplinary proceedings or if the matter is complex and involves legal aspects, courts have held that the employee would also have a right to legal representation.

Further, in general misconduct matters, “workman” employees would generally have the right to be represented by a co-worker in inquiry proceedings, if the establishment is covered under the Industrial Employment (Standing Orders) Act, 1946 (SO Act). The applicability of this statute depends on the nature of the establishment and its headcount.

In the case of an employee involved in an internal investigation, a distinction must be made as to whether the employee is acting purely as an informant or whether there are conflicting interests between the company and the employee involved. If the employee is acting purely as an informant, the employee has, in principle, no right to be accompanied by their own legal representative.[1]

However, if there are conflicting interests between the company and the employee involved, when the employee is accused of any misconduct, the employee must be able to be accompanied by their own legal representative. For example, if the employee's conduct might potentially constitute a criminal offence, the involvement of a legal representative must be permitted.[2] Failure to allow an accused person to be accompanied by a legal representative during an internal investigation, even though the facts in question are relevant to criminal law, raises the question of the admissibility of statements made in a subsequent criminal proceeding. The principles of the Swiss Criminal Procedure Code cannot be undermined by alternatively collecting evidence in civil proceedings and thus circumventing the stricter rules applicable in criminal proceedings.[3]

In general, it is advisable to allow the involvement of a legal representative to increase the willingness of the employee involved to cooperate.

There is no statutory right to be accompanied at a disciplinary investigation meeting; the right only applies to disciplinary hearings (section 10 ERA 1999). There is, however, a right to be accompanied by a colleague or trade union representative at any grievance investigation meeting, under section 10, although this is only in respect of the person who raises the grievance (not any person who is the subject of the grievance or other witnesses).

That said, the employer’s policies and contracts should be checked to see if they contain a broader right to be accompanied. Employers may also need to allow a broader right to be accompanied as a reasonable adjustment for disabled employees (for example, to allow family members or medical professionals to be present). Equally, where the allegations are sufficiently serious (eg, criminal, especially if the findings are likely to be shared with the police), it may be appropriate to allow legal representation during the investigation.

No.

There is no specific requirement to constitute a works council for most industries or inform the trade union about an investigation or disciplinary inquiry.

It is common, however, for individuals to share details of the matter with trade union representatives and seek their support. Further, if an employee has the right to be represented or supported by a colleague (for example, if the establishment is covered by the SO Act), the individual may request trade union representatives to support them during inquiry proceedings.

In general, works councils and trade unions are not very common in Switzerland and there are no statutory rules that would provide a works council or trade union a right to be informed or involved in an ongoing internal investigation. However, respective obligations might be foreseen in an applicable collective bargaining agreement, internal regulations or similar.

Aside from the statutory right to be accompanied (see question 15), any further involvement by the works council or trade union would depend on the terms of the relevant works council or trade union recognition agreement.

Every workplace investigation is unique and varies based on the facts and circumstances of each case. As a result, the nature or type of support to be given to an employee would also vary from case to case. The bare minimum should be an assurance that there will be no retaliation against them for participating in the investigation. Other measures may include:

• changing the reporting relationship if the accused is the reporting manager or boss of the complainant;
• conducting investigations and interviews virtually or through videoconferencing in cases where parties or witnesses may not be able to physically appear before the investigating authorities; and
• allowing witnesses to be cross-examined virtually or through a written questionnaire where there is a fear of intimidation or retaliation from the parties.

The employer should be mindful that any interim measures or support it extends does not prejudice any particular party.

Under the SH Act, employers are legally required to assist the complainant if he or she chooses to file a complaint about workplace sexual harassment with the police under the Indian Penal Code or any other law that is in force. Further, the complainant can also seek interim protective measures from the IC, such as a request for transfer for the accused or the complainant or to grant leave to the complainant for three months. 

The employer does not generally need to provide specific support for employees that are subject to an internal investigation. The employer may, however, allow concerned employees to be accompanied by a trusted third party such as family members or friends.[1] These third parties will need to sign separate non-disclosure agreements before being involved in the internal investigation.

In addition, a company may appoint a so-called lawyer of confidence who has been approved by the employer and is thus subject to professional secrecy. This lawyer will not be involved in the internal investigation but may look after the concerned employees and give them confidential advice as well as inform them about their rights and obligations arising from the employment relationship.[2]

The employer needs to consider the health and wellbeing of all staff involved in the investigation, since this can be a very stressful process. The employer and investigator can assist by ensuring that all parties are aware of what is expected of them. Timings are also important; having a clear and expeditious timetable and providing updates if the timetable slips will help. Regular catch-ups by managers can be used to monitor how employees are coping. They should be reminded about any resources to help support them, such as employee helplines or employee assistance programmes.

Where an employer has particular concerns about an employee’s health, a referral to occupational health can assist. The employer may also wish to consider whether employees should be given additional time off, or whether any other adjustments can be made to the investigation process. For particularly serious allegations, the employer may consider facilitating the provision of independent legal advice for the employee, or making a contribution towards legal fees.

Where unrelated matters are revealed during, or because of, the investigation, the course to be adopted may depend on several factors. Normally, if additional instances of misconduct are revealed against the same accused employee, even if they are unrelated to the original investigation, it would be advisable to independently investigate those issues too, to ensure that there are comprehensive grounds for any future disciplinary inquiry or action. If unrelated matters are revealed against other stakeholders involved in the investigation – for example, a forensic review reveals that the complainant or some witnesses have themselves potentially engaged in some other form of policy breach – whether or not those issues are investigated (as well as the timing of such investigation) would need to be decided on a case-by-case basis. Issues to consider include whether these matters affect the credibility of their statements, point at some form of other conspiracy, or create the risk of retaliation claims at a later date.

In SH matters, however, if the complaint involves instances of sexual harassment as well as other forms of general harassment or misconduct, to the extent such other issues aren't linked to the instances of sexual harassment (eg, creation of a hostile work environment for the complainant), these other concerns should preferably not be investigated by the IC and instead should be referred to the employer to address, as per its general grievance-redressal mechanisms.

There are no regulations in this regard in the Swiss employment law framework. However, in criminal proceedings, the rules regarding accidental findings apply (eg, article 243, Swiss Criminal Procedure Code for searches and examinations or article 278, Swiss Criminal Procedure Code for surveillance of post and telecommunications). In principle, accidental findings are usable, with the caveat of general prohibitions on the use of evidence.

These should typically be disregarded by the investigator. From a data protection perspective, the ICO’s position is that other information collected during an investigation should be disregarded and, where feasible, deleted unless it reveals information that no reasonable employer could be expected to ignore. In those circumstances, the employer should arrange for an independent third party to determine whether a separate investigation into unrelated matters is needed.

Indian labour statutes do not prescribe any particular process to be followed if the accused raises any grievances during the investigation and such situations would need to be dealt with on a case-by-case basis. For example, if the grievances relate to the fairness of the investigation or inquiry process, the lack of impartiality of the investigators or the inquiry officer, those may need to be addressed upfront before proceeding further. Where grievances may be unrelated to the investigation or inquiry at hand (and potentially also a method to distract the employer from the core issues or delay or confuse the main investigative proceedings), it may be advisable to communicate to the employee that such grievances will have to be dealt with separately and other safeguards adopted to avoid calling the main investigation or inquiry proceedings into question (eg identifying an independent team to review the grievances).   

In the context of private internal investigations, grievances initially raised by the employee do not usually have an impact on the investigation.

However, if the employer terminates the employment contract due to a justified legal complaint raised by an employee, a court might consider the termination to be abusive and award the employee compensation in an amount to be determined by the court but not exceeding six months’ pay for the employee (article 336 paragraph 1 (lit. b) and article 337c paragraph 3, Swiss Code of Obligations). Furthermore, a termination by the employer may be challenged if it takes place without good cause following a complaint of discrimination by the employee to a superior or the initiation of proceedings before a conciliation board or a court by the employee (article 10, Federal Act on Gender Equality).

This is a relatively common tactic. The employer will need to decide whether to suspend the investigation to deal with the grievance, or conclude the investigation first, depending on the circumstances. It would usually be difficult to deal with both the grievance and the investigation concurrently, unless the facts overlap significantly.

If the employee becomes uncooperative and refuses to take part in the investigation, they should be told that the investigator may need to make a decision in the absence of their account based on all the other evidence available. The employer may decide to treat it as failure to comply with a reasonable management instruction and take disciplinary action on that basis.

The approach to be adopted would be fact-specific but the investigation itself can normally continue, even in the absence of the accused employee. Where it is critical to speak with the employee as part of the investigative process, delays on account of the employee's sickness may need to be accommodated. At the same time, the employer would normally be justified in seeking necessary evidence of the authenticity of the employee's illness and anticipated duration of absence. An accused individual's participation would be more crucial in a disciplinary inquiry to formally respond to the written charges or present their side before the inquiry officer, and absences due to genuine health concerns may need to be reasonably accommodated. Significantly long periods of absence for health reasons may itself be valid grounds to terminate employment under Indian law, subject to the terms and conditions of employment.

The time spent on the internal investigation by the employee should be counted as working time[1]. The general statutory and internal company principles on sick leave apply. Sick leave for which the respective employee is not responsible must generally be compensated (article 324a paragraph 1 and article 324b, Swiss Code of Obligations). During certain periods of sick leave (blocking period), the employer may not ordinarily terminate the employment contract; however, immediate termination for cause remains possible.

The duration of the blocking period depends on the employee's seniority, amounting to 30 days in the employee's first year of service, 90 days in the employee's second to ninth year of service and 180 days thereafter (article 336c paragraph 1 (lit. c), Swiss Code of Obligations).

This is a relatively common occurrence. It would usually be appropriate to suspend the investigation temporarily, to determine how serious the health issue is and when the employee may be fit to return. The investigator should consider what adjustments or allowances can be made to progress the investigation despite the employee’s absence. If their evidence has not yet been gathered, the employee may be invited to provide a written statement instead of attending an investigation meeting, or the meeting could be held remotely or at a neutral location. If none of this is possible, it may be difficult to fully conclude the investigation.  

Often the tests or standards applied by external agencies (such as the police or regulators) in their investigations vary significantly in comparison to those that apply for internal investigations that are focused on potential disciplinary action against an accused employee. For example, the standard of proof required for taking an internal disciplinary measure is one of a preponderance of probability and does not require the employer to establish guilt beyond a reasonable doubt, which is the standard applied in criminal proceedings. Depending on the circumstances, conducting or continuing an internal investigation can also place the organisation in a better position to collaborate with external agencies such as the police or a regulator in their investigations, and be better prepared to share information that such agencies may request. It may also help demonstrate that the organisation does not tolerate potential violations of law or its policies and that it proactively investigates and addresses such issues. This may also help in protecting innocent members of management from liability from external agencies. To that extent, a parallel criminal or regulatory investigation may not normally be a reason for the organisation to suspend its internal investigation.

In the context of sexual harassment claims, the complainant has the right to file a police complaint against the alleged harasser (and the organisation must support  her in doing so). However, a parallel police investigation would not take away the organisation's responsibility to address the grievances through its IC, which would be expected to complete its proceedings within 90 days.  

The actions of the employer may carry through to a subsequent state proceeding. First and foremost, any prohibitions on the use of evidence must be considered. Whereas in civil proceedings the interest in establishing the truth must merely prevail for exploitation (article 152 paragraph 2, Swiss Civil Procedure Code), in criminal proceedings, depending on the nature of the unlawful act, there is a risk that the evidence may not be used (see question 27 and article 140 et seq, Swiss Civil Procedure Code).

This situation needs to be handled with caution. It is important to remember that regulatory or criminal proceedings, and employment proceedings, are separate; while there may be an overlap of alleged misconduct, they are usually addressing different questions, with different standards of proof. The outcome in one should not, therefore, be treated as determinative of the other.

Where the employee is suspected of, charged with, or convicted of, a criminal or regulatory offence, the employer should still investigate the facts as far as possible, come to a view about them and consider whether the conduct is sufficiently serious to warrant instituting the disciplinary procedure.

In terms of timing, there are no concrete rules governing how an employer must proceed in the circumstances of a parallel criminal investigation. Much will depend upon the circumstances of the case, the length of delay, the size of and resources available to the employer, and the preferences (if expressed) of the external authority. If the employer is concerned about prejudicing the regulatory or criminal proceedings or otherwise prefers to wait for their conclusion before instigating internal proceedings, they are unlikely to be criticised for delaying. The accused employee may also be advised not to provide a statement in the workplace investigation for fear of a negative impact on the criminal investigation. This would make it difficult to proceed with the workplace investigation, unless the employer is confident it has strong enough evidence to justify any disciplinary action subsequently taken.

On the other hand, regulatory or criminal investigations may take months or years to progress; it may not be realistic for the employer to keep any investigation in abeyance for so long. This is particularly true when the accused employee is suspended on full pay, witness recollections will grow less reliable, and the alleged victim may feel unable to return to work until the matter is resolved.

In these circumstances, the employer may continue with their investigation if they believe it is reasonable to do so, and consultations have commenced with the external agency. The court will usually only intervene if the employee can show that the continuation of the disciplinary proceedings will give rise to a real danger that there would be a miscarriage of justice in the criminal proceedings.

Employers should consider carefully whether and when to involve the police in allegations of employee misconduct. Employers must be careful not to subject their employees to the heavy burden of potential criminal proceedings without the most careful consideration, and a genuine and reasonable belief that the case, if established, might justify the epithet “criminal” being applied to the employee's conduct.

Where the police are called in, they should not be asked to conduct any investigation on behalf of the employer, nor should they be present at any meeting or disciplinary meeting. The employer should, however, communicate with the police to see if they have a strong view about whether the internal process should be stayed, or whether they should interview witnesses first.

Concerning SH cases, the IC must supply a copy of the preliminary findings to the complainant and accused (where both are employees of the organisation) to allow them to make their representations before final findings and recommendations are shared. The IC's final report with recommendations for disciplinary action, if any, must also be shared with both parties.

For other forms of misconduct, it is not mandatory to share the details of the fact-finding investigation itself. However, if disciplinary action is contemplated and a disciplinary inquiry is necessary against the employee under investigation, the relevant details of the evidence gathered against the individual will need to be shared with him or her as part of the charge sheet. On the other hand, where no disciplinary inquiry is being conducted after an investigation (eg, if there is no merit in the allegations), the employer may choose to not share the investigative findings and only inform the individual that no further action is being taken.

Workplace investigations often result in an investigation report that is intended to serve as the basis for any measures to be taken by the company's decisionmakers.

The employee's right to information based on article 8, Swiss Federal Act on Data Protection also covers the investigation report, provided that the report and the data contained therein relate to the employee.[1] In principle, the employee concerned is entitled to receive a written copy of the entire investigation report free of charge (article 8 paragraph 5, Swiss Federal Act on Data Protection and article 1 et seq, Ordinance to the Federal Act on Data Protection). Redactions may be made where the interests of the company or third parties so require, but they are the exception and must be kept to a minimum.[2]

The employee would usually get a copy of the investigation report (which would typically have the relevant evidence considered by the investigator annexed to the report, unless the report is privileged). It is not usual practice to allow the employee to make representations on the report before it is finalised.

The report will set out what facts the investigator was able to establish by reference to the available evidence. The investigator’s role is to gather and consider evidence about what did or did not happen, so the employer can understand if there is a case to answer. This is distinct from determining culpability, which is something for the manager conducting the disciplinary hearing (not the investigator) to determine, in addition to deciding any disciplinary sanction.

Please see question 22.

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]

The answer to this depends on whether or not privilege attaches to the report, as well as whether criminal proceedings are contemplated – if so, there may be a danger of waiver of privilege, or witness evidence being contaminated if they have an opportunity to read each other’s evidence as part of the report. This could inhibit the fairness of any subsequent criminal trial.

In misconduct cases, the next steps for an employer would depend on the outcome of the investigation. If the investigation reveals that the employee has violated the terms of employment and the employer wishes to take disciplinary action (which may include dismissal, depending on the gravity of the misconduct), it would normally be necessary to conduct a disciplinary inquiry as per the principles of natural justice before any actual punishment is meted out. Such a disciplinary inquiry would normally require the issuance of a charge sheet, the appointment of an independent inquiry officer (who should not have been involved in the investigation or otherwise in a position of bias vis-a-vis the parties involved),  and conducting disciplinary hearings, etc.

With SH complaints, once the investigation is concluded by the IC, the employer will be provided with a copy of the final report by the IC along with recommendations (ie, the disciplinary measures to be taken against the accused) for the employer to implement. The employer would then be required to act upon the recommendations shared by the IC within 60 days.

If the investigation uncovers misconduct, the question arises as to what steps should be taken. Of course, the severity of the misconduct and the damage caused play a significant role. Furthermore, it must be noted that the cooperation of the employee concerned may be of decisive importance for the outcome of the investigation. The possibilities are numerous, ranging, for example, from preventive measures to criminal complaints.[1]

If individual disciplinary actions are necessary, these may range from warnings to ordinary or immediate termination of employment.

The investigator may recommend further action, but should not decide whether allegations are true, or suggest a possible sanction or prejudge what the outcome of any subsequent disciplinary process would be.

The employer will need to consider whether it is necessary to commence disciplinary proceedings. For regulated businesses, there may be an obligation to inform their regulator of the investigation outcome. In some circumstances, the employer may feel the need to make an internal or external announcement about the outcome, and any action it intends to take to implement any recommendations made by the investigator. There may also need to be certain updates to policies or procedures as a result of the investigation.

Please see question 22.

For SH complaints, the report would normally contain a complete record of interviews conducted, evidence provided and other associated artefacts.

While investigation reports for other forms of misconduct may be kept private (subject to observations in the prior response relating to disciplinary inquiries), whether or not the investigative report should be disclosed to external agencies such as the police or other regulators would be a subjective decision. Disclosure may be necessary where a demand is made by the external agency as per powers it enjoys under the law (to seek production of necessary documents or personnel Rules of legal privilege may also be important to assess if any information can be withheld based on client-attorney privilege.

The employer is generally not required to disclose the final report, or the data obtained in connection with the investigation. In particular, the employer is not obliged to file a criminal complaint with the police or the public prosecutor's office.

Exceptions may arise, for example, from data protection law (see question 22) or a duty to release records may arise in a subsequent state proceeding.

Data voluntarily submitted in a proceeding in connection with the internal investigation shall be considered private opinion or party assertion.[1] If the company refuses to hand over the documents upon request, coercive measures may be used under certain circumstances.[2]

Primarily, the investigation findings are disclosed to the employer and the employee under investigation. In scenarios involving allegations of a breach of regulatory duty or criminal law, the authorities may have the power to compel disclosure of any non-privileged materials generated in the investigation. Powers of compulsion do not apply to privileged materials.

There is no statutory guidance on this. It is common for employers to retain details of disciplinary proceedings on an employee's record for the entire duration of their employment.

It is also advisable to retain the details of any investigations or disciplinary proceedings for at least three years after an individual has been dismissed on account of such proceedings, as this is the general limitation period for raising claims of unfair dismissal. In labour matters, courts in India often allow delays in filing suit after the limitation period, meaning organisations sometimes make a practical call to retain details of investigations and disciplinary proceedings for longer.

From an employment law point of view, there is no statute of limitations on the employee's violations. Based on the specific circumstances (eg, damage incurred, type of violation, basis of trust or the position of the employee), a decision must be made as to the extent to which the outcome should remain on the record.

From a data protection point of view, only data that is in the interest of the employee (eg, to issue a reference letter) may be retained during the employment relationship. In principle, stored data must be deleted after the termination of the employment relationship. Longer retention may be justified if rights are still to be safeguarded or obligations are to be fulfilled in the future (eg, data needed regarding foreseeable legal proceedings, data required to issue a reference letter or data in relation to a non-competition clause).[1]

The investigation outcome may not need to be noted on the accused employee’s record at all. Usually only the outcome of any subsequent disciplinary or grievance process would be noted, rather than the prior investigation.

The employer should keep the investigation report for as long as it remains relevant. This would usually be no longer than six years, unless regulatory obligations dictate otherwise. The report along with all documentation and witness statements gathered during the investigation should be retained securely and confidentially but for no longer than is absolutely necessary under the requirements of the DPA 2018 and the employer's data protection policies and procedures. There may be additional retention requirements in a regulated context; the position for each particular business and employee should be checked.

The risk an employer may face would be quite subjective. For example, if an individual is suspended without pay, the individual may attempt to argue that the entire investigation should be set aside, as non-payment of salary affects an individual’s ability to properly represent themselves. Material errors in disciplinary proceedings or not adhering to the rules of natural justice may result in disciplinary action being set aside, and potentially also orders for reinstatement of the employee with back pay (if the individual is protected by local labour laws) if the dismissal is found to be unfair or disproportionate to the gravity of the misconduct.

In addition to the above risks, in SH matters, if the IC constitution is incorrect or there are allegations of bias against a committee member, the whole investigation may be set aside and the organisation ordered to conduct a fresh inquiry through a properly constituted committee.

As there are no specific regulations for internal investigations, the usual legal framework within which the employer must act towards the employee derives from general rules such as the employer's duty of care, the employee's duty of loyalty and the employee's data protection rights.

But, for example, unwarranted surveillance could conceivably result in criminal liability (article 179 et seq, Swiss Criminal Code) for violations of the employee's privacy. Furthermore, errors made by the employer could have an impact on any later criminal proceedings (eg, in the form of prohibitions on the use of evidence).[1]

Evidence obtained unlawfully may only be used in civil proceedings if there is an overriding interest in establishing the truth (article 152 paragraph 2, Swiss Civil Procedure Code). Consequently, in each case, a balance must be struck between the individual’s interest in not using the evidence and in establishing the truth.[2] The question of the admissibility of evidence based on an unlawful invasion of privacy is a sensitive one – admissibility in this case is likely to be accepted only with restraint.[3] Since the parties in civil proceedings do not have any means of coercion at their disposal, it is not necessary, in contrast to criminal proceedings, to examine whether the evidence could also have been obtained by legal means.[4]

Unlawful action by the employer may also have consequences on future criminal proceedings: The prohibitions on exploitation (article 140 et seq, Swiss Criminal Procedure Code) apply a priori only to evidence obtained directly from public authorities. Evidence obtained unlawfully by private persons (ie, the employer) may also be used if it could have been lawfully obtained by the authority and if the interest in establishing the truth outweighs the interest of the individual in not using the evidence.[5] Art. 140 paragraph 1 Swiss Criminal Procure Code remains reserved: Evidence obtained in violation of Art. 140 paragraph 1 Swiss Criminal Procure Code is subject to an absolute ban on the use of evidence (e.g. evidence obtained under the use of torture[6]).[7]

A reasonable investigation is a key component of a fair disciplinary process. Errors in the investigation could therefore expose the employer to liability for unfair dismissal under ERA 1996.

Failure to follow the ACAS Code does not automatically make an employer liable in any proceedings taken against it. However, an employment tribunal will take the ACAS Code into account when deciding whether an employer has behaved fairly, and has the power to increase awards by up to 25% where it believes an employer has unreasonably failed to follow the ACAS Code's provisions.

There may be liability for breach of the employee’s contract of employment if the employer breaches aspects of the investigation policy that are contractual, any contractual provisions relating to suspension, or otherwise conducts the investigation in a manner that breaches the implied term of trust and confidence.

There may be liability under the EA 2010 if the investigation is conducted in a discriminatory manner, which could include not making reasonable adjustments to the process for disabled employees.

Where the investigation involves protected disclosures, there may be liability under the whistleblowing provisions of ERA 1996 if the whistleblower is subjected to detriment or dismissal on the grounds of their protected disclosures.

Improper evidence gathering or processing may be actionable under the DPA 2018, IPA 2016 or the IP Regs 2018.

Finally, there may be common law claims in some circumstances (for example where reports need to be made to regulators, which in turn may affect the relevant employee’s future employment prospects) for defamation, or, more unusually, for stress-related personal injury.