Workplace Investigations

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.

An employee can be suspended during a workplace investigation provided his or her prior written consent is obtained to this effect during or immediately before the investigation. Obtaining a generic written consent from the employee regarding suspension, which is not tied to a specific event, will not be valid. If there is a suspension of employment due to the workplace investigation, the obligations of the parties arising from the employment relationship continue, except for the employer’s obligation to pay a salary (and provide benefits, if any) and the employees’ duty to perform work.

There is no provision or established court decision setting forth the rules regarding the length of the suspension period; however, as a general rule, this period should be as brief as possible, so as not to cause any impression that the employment relationship has been terminated by the employer. Suspension of an employee on full pay during a workplace investigation, which is also known as garden leave, is a commonly used alternative to a conventional suspension method described above. During the garden leave period, an employee can be banned from entering the workplace and performing any of his or her duties either partially or entirely while continuing to be paid his or her regular salary, along with fringe benefits. Garden leave is not a concept regulated under Turkish employment legislation, but rather developed in practice, mostly by the Turkish subsidiaries of multinational companies. An ideal approach for the implementation of garden leave would be to obtain the written consent of the employees either at the commencement of employment or during the investigation.

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.

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).

If the issues being examined during an investigation are also subject to parallel criminal or regulatory investigation, the workplace investigation will probably be stayed. This is primarily because parallel criminal or regulatory investigations would necessitate a more comprehensive examination and public bodies overseeing such investigations have a broader legal prerogative to gather evidence. It is, therefore, advisable to stay the internal investigation to not interfere with the criminal or regulatory authorities. If a prosecutor or a court requires the employer to give evidence or share certain documents, the police can compel the employer to share evidence. Regulatory bodies may also ask the employer to share evidence and the powers conferred on such regulatory bodies will be a determining factor in whether they can compel the employer.

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.