Workplace Investigations
Contributing Editors
Workplace investigations are growing in number, size and complexity. Employers are under greater scrutiny as of the importance of ESG rises. Regulated industries such as finance, healthcare and legal face additional hurdles, but public scrutiny of businesses and how they treat their people across the board has never been higher. Conducting a fair and thorough workplace investigation is therefore critical to the optimal operation, governance and legal exposure of every business.
IEL’s Guide to Workplace Investigations examines key issues that organisations need to consider as they initiate, conduct and conclude investigations in 29 major jurisdictions around the world.
Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.
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01. What legislation, guidance and/or policies govern a workplace investigation?
01. What legislation, guidance and/or policies govern a workplace investigation?
Japan
Japan
- at Mori Hamada & Matsumoto
There is no specific legislation, guidance or policies covering investigations in the workplace. Issues such as the Personal Data Protection Law, invasion of privacy, and infringement of freedoms may arise regarding the related parties, subjects, methods, and results of investigations. In addition, court decisions have stated that "when there has been a violation of corporate order, an investigation of the facts may be conducted to clarify the nature of the violation, issue business instructions or orders necessary to restore the disturbed order or take disciplinary action against the violator as a sanction”. The investigation or order must be reasonable and necessary for the smooth operation of the enterprise, and the method and manner of the investigation or order must not be excessive or restrain an employee's personality or freedom. In such a case, the investigation may be considered to be illegal and may constitute a tort.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
Spain has not passed any statutes, regulations or policies specifically governing workplace investigations. Instead, general employment and data protection legislation, which safeguards employees’ rights, is fully applicable during these types of enquiries.
These statutes focus on employee privacy. As a result, the application of this legislation:
- limits the matters that may be investigated: they have to be relevant to the employment relationship and there has to be a legitimate reason to conduct the enquiry;
- sets boundaries to the means that may be lawfully used by the company in the investigation: they must be the least intrusive means for employees’ rights (for instance, an email review should be a last resort, reserved for when less-invasive means are not available or would not be effective); and
- states that the companies’ decisions during the investigation must be proportional in light of the facts under review and the legal consequences attached to them.
Collective bargaining agreements, which in Spain generally apply to every company within their scope of application (normally a given economic sector), may regulate workplace investigations. However, it is unusual for collective bargaining agreements to regulate workplace investigations.
Finally, major international corporations with a presence in Spain do tend to have an ethics or whistleblowing policy that governs how an investigation should be conducted. Even if these are self-imposed policies, they are contractually binding and, once established, must be respected by companies.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
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.
05. Can the employee under investigation bring legal action to stop the investigation?
05. Can the employee under investigation bring legal action to stop the investigation?
Japan
Japan
- at Mori Hamada & Matsumoto
There are very few cases in which an employee subject to an investigation can file a legal proceeding to have the investigation stopped. Theoretically, an employee may be able to file a lawsuit or a provisional disposition to stop the investigation if he or she has a legal right to request that the company stop the investigation, but usually a lawsuit or a petition for a provisional disposition alone will not stop an investigation from proceeding. Although a provisional injunction would conclude in a relatively short period, such a provisional injunction would be unlikely to be issued if the investigation is conducted properly.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
No, an employee under investigation has no direct legal option to stop an investigation. This is because conducting an enquiry is within the employers’ legally acknowledged powers, attached to their capacity to manage their business and enforce employment contracts and internal policies.
Notwithstanding the above, if the investigation breaches an employee’s rights (privacy, dignity, remuneration, etc), the individual could:
- file a lawsuit aimed at stopping said breach (and potentially seeking an award for damages); or
- file a claim with the Labour Inspectorate with the same purpose.
The result, in this case, would stop the enquiry.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
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.